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Tuesday, November 17, 2015

Undue influence not a part of father's transfer of home into joint names with son

The court in Ontario has heard yet another case in which a parent added one of his kids to the title of his home. If it seems that these cases are happening every day, that's because they are. I hope that parents who read these posts will think twice before adding their children as joint owners to their homes, knowing the frequency with which these things end up in front of a judge. Any parent who really wants one child to inherit the home is strongly urged to talk to an experienced wills and estates lawyer before going ahead.

When John Kozusko died in 2014, he was 87 years old. He had four children, one of whom (John Michael Kozusko  - I'll call him Michael in this post) still lived with him and looked after him. The other three kids had moved out of the home ages before.

While Mr. Kozusko was alive, he had made his son Michael the executor of his estate. He had also named him as his attorney under his Power of Attorney, and his agent under his power of attorney for personal care. All of that was fine, but the part that upset Michael's siblings was that Mr. Kozusko had transferred his home into joint names with Michael ten years before his death.

Michael claimed the home by right of survivorship. The other kids claimed that Michael had unduly influenced their father into adding him as a joint owner. Undue influence means coercion, trickery, persuasion, or bullying which would cause Mr. Kozusko to add Michael as an owner even though he really didn't want to.

The matter went to court. The siblings said that their father didn't speak much English, and was unsophisticated, and as a result his work history and his past activities as a team leader at the Toronto Transit Committee were examined. The lawyer who had drawn up the will and the land transfer was called as a witness. Mr. Kozusko's neighbour was also called as a witness. Whatever privacy and dignity Mr. Kozusko had hoped for, it was gone by the time everyone had their say.

At the end of it all, the court determined that Mr. Kozusko really had wanted his son to inherit the house and that there was no undue influence. Michael was allowed to keep the home. This decision was based on the facts of the case. It had a lot to do with the quality and experience of the lawyer who had drawn up Mr. Kozusko's documents, since she had been very careful with him and had been alert for signs of undue influence when she worked for him. If you'd like to read the full case, click here. 

The only thing I might have done differently is to use the will to confirm the land transfer.

While this appears to be a good result for Michael, and for his father, the fall-out is also significant. Taking a matter to court like this costs money. And as in most family battles, it most likely cost this family its harmony. It's pretty much impossible to be a family again once you've sued each other over an estate.

1 comment:

  1. my husband and I own our home and my son owns his home. we want to move into his home and let him live in our home because his is much smaller than ours and would be a better layout for me. we would still own our respective homes, no money will exchange hands on either side. Would either ourselves or my son have to pay capital gains tax if and when we decided to sell our homes? We live in Ontario Canada.

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