Michael Ford
Family

Meaning of intent can get lost

The Ontario Court of Appeal has given the word “intent” a flexible and elastic meaning as it relates to property and separated parties, Toronto family lawyer Murray Maltz writes in Lawyers Weekly.  Read Lawyers Weekly  


"In the case of Hansen Estate v. Hansen [2012] O.J. No. 780, the parties were married and purchased a house that became their matrimonial home. As is common with married couples, they chose to take ownership of the house as joint tenants with a right of survivorship," writes Maltz. "The parties separated and Mr. Hansen instructed his lawyer to create a will distributing everything to his four daughters. As common practice he did not want to leave anything to the wife he had now separated from. Mr. Hansen signed the will." 

The couple's separation was dealt with in a friendly fashion, and Mrs. Hansen was amenable to Mr. Hansen buying her out of the matrimonial home, the article states. Bills were transferred to Mr. Hansen, the article continues, but a value had not been placed on the house or any terms of the buyout.

"The terms of the agreement of purchase and sale are of great importance in a real estate transaction," writes Maltz. "It’s the backbone of a deal. The Hansens had not negotiated a purchase price, date of closing or other terms of sale. As is often the case, the devil is in the detail, and this transaction was far from concluded."

Before the terms of the buyout of the matrimonial home were determined and the buyout concluded, Mr. Hansen died, meaning that Mr. Hansen’s share went to Mrs. Hansen despite the will and separation, the article says, adding the children of Mr. Hansen were not happy and argued that the joint tenancy was severed and Mrs. Hansen should not get Mr. Hansen’s share.

In the end, "the Court of Appeal took an extremely low threshold to determine the intent of the parties, disregarding the backbone of real estate law," writes Maltz, noting the decision leaves questions over how far the court can stretch the word "intent."

Lawyer Directory
Neesons
BICOFeldstein Family LawMKD InternationalAdvocateWireAdvocateTVPolice Blotter