What is the effect of the minutes of a settlement agreement severing a joint tenancy?

Alberta, Canada


The following excerpt is from Gillette v. Cotton, 1979 CanLII 1169 (AB QB):

McDermid J.A., after a thorough review of the history and background of the law of joint tenancy, comes to the conclusion on the facts of the case that: (a) The minutes of settlement agreement as it was worded did not sever the joint tenancies, except for the property that was agreed to be sold. Further, the wife obviously did not consider that severance had taken place then, for she would not have tried so hard to effect severance at the later date. (b) The lease from one joint tenant to another during the latter's lifetime did not sever the joint tenancy. (c) The commencement of the partition action did not sever the joint tenancy. The court followed Munroe v. Carlson, supra. (d) The execution of the transfers to be delivered on her death did not effect severance. (e) The execution of the will had no effect on the joint tenancy. (f) Although in England today, under statute, one joint tenant can sever the tenancy by giving proper notice to the other, such is not the law in Canada and the court declined to institute this procedure by judicial decision. (g) The declaration of trust amounted to a gift which was not revoked up to the time of her death and this did have the effect of severing the joint tenancy.

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