A Cautionary Tale: R. v. Thorsteinson

In a recent decision, the Saskatchewan Court of Appeal in R. v. Thorsteinson considered whether a person may take back a gift of land into joint tenancy.  This decision should make people think twice about adding children or close friends and family as joint tenants for land as you may not have any legal options for taking back such a gift.

Majorie Thorsteinson, and later her estate, brought an application to court against William Olsen.  She knew William since he was a child and had acted as his nanny.  The two had a close relationship and lived in the same home for a period of time.  At a time when Marjorie and William were close and relied on each other, Marjorie decided to add William as a joint owner with a right of survivorship on 9 parcels of farmland.  She signed a “DEED OF GIFT” as part of the transfer.  Later that year, William married and Marjorie moved into a care home nearby.

After living in the care home for some months, Marjorie decided she wanted to return home.  William was not in agreement.  Eventually, Marjorie made a court application requesting the return of the 9 parcels of farmland or a severance of the joint tenancy.

The Saskatchewan Court of Appeal dismissed the application on the basis that the evidence showed that the transfer of the 9 parcels of farmland was a gift from Marjorie to William and did not result in William holding the farmland in trust for Marjorie.  The Saskatchewan Court of Appeal also found that there was no undue influence used to get Marjorie to transfer the farmland to William and that it was not necessary for Marjorie to get independent legal advice for such a gift to be legally valid.

Finally, the Saskatchewan Court of Appeal held that a joint tenancy of land may only be terminated in Saskatchewan by written agreement of the joint tenants or by court order, and refused to sever the joint tenancy because Marjorie’s gift to William included the right of survivorship.

If you are considering adding someone as a joint tenant to land you own as part of your estate plan, R. v. Thorsteinson shows how important it is to consult with a lawyer before doing so to make sure you and your legal interests are protected.