Yesterday I got judgment from the Chief Justice summarily dismissing an action that was attempting to attack a unilateral severence of a joint tenancy on the grounds of fraud.
The Applicant (mother) and her daughter owned a property as joint tenants. Just before her death, the daughter engaged a solicitor to sever the join tenancy. She signed a Transfer effecting a severance of the joint tenancy, pursuant to s59 of the Land Title Act 1994.
The transfer was registered, so that the Property is now held as tenants in common.
After the death of the daughter, the Applicant comenced a proceeding against 1) the daughter’s executor 2) the daughter’s husband, who was the sole beneficairy of her estate and 3) the Registrar of Titles, seeking to set aside the transfer and the severence. The Respondents relied on indefeasibility of title. The Applicant alleged fraud, to defeat that indefeasibiliy.
The fraud alleged was that, instead of giving notice of the intended severence to the Applicant at the nursing home where she was living at the time, the notice was sent (by the daughter’s solicitor) to the Applicant at the Property, in circumstances where the daughter and the solicitor knew that she no longer lived there, because she was in a nursing home.
The Chief Justice agreed that the facts as alleged could not amount to fraud (as was required to defeat indefeasible title), and summarily dismissed the case.
The executor got his costs on the standard basis. The husband (beneficiary) got indemnity costs from the date it was pointed out to the Applicant that they had no cause of action against him.