As if COVID Wasn’t Bad Enough, Now We Have Zombies
Just in time for Halloween. A zombie deed is a document which is signed during a property owner’s lifetime but registered on title after the owner dies. In modern legal terminology, this should be referred to by the less catchy name of “zombie acknowledgment and direction”.
In a relatively recent decision on the Ontario Superior Court (Thompson v Elliott Estate, 2020 ONSC 1004 ), Justice MacLeod-Beliveau dealt with the issue of registering “zombie” deeds in the transfer of property. In this case, the deceased, Alitha Elliott, had, before her death, executed an Acknowledgement and Direction to sever her joint tenancy in her home. She expressed that her relationship with her common law spouse, Byron Thompson, had broken down, and that she wished to leave the entirety of her estate to her adult children. There were no allegations of incapacity.
Unfortunately for all involved, Ms. Elliott’s lawyer then failed to register the severance of the joint tenancy on title. Ms. Elliott then died, after which her lawyer registered the severing. The surviving common law spouse, Mr. Thompson, brought an application for a declaration of an interest in land, claiming a right of survivorship over the property.
In dismissing Mr. Thompson’s application, the Court found that the deceased’s execution and delivery of the Acknowledgement and Direction was sufficient to unilaterally sever the joint tenancy. The deceased’s intention to sever the joint tenancy was clear, regardless of it not being registered on title.
The Court then went on to caution counsel against the registration of these sorts of instruments on title. Where a client has executed an Acknowledgement and Direction, his or her instructions do not survive death. The proper course of action in these circumstances is for the lawyer to bring an application requesting a certificate of pending litigation and a declaration of interest in the property and for a vesting order.
The takeaway is clear: Seek the Court’s assistance and steer clear of necromancy.