A “Zombie” deed refers to a conveyance of an interest in property of a deceased person, executed by the deceased but registered after death. Once used by some estate lawyers as a tool to avoid probate fees by having a transfer signed in advance and registered after death, “Zombie” deeds can no longer be relied on to effectively convey an interest in real property and the Director of Titles has clearly indicated that he will cancel any such registration he happens to find.
In the case of Thompson v Elliott Estate, Justice Macleod-Beliveau outlines the inherent problems with “Zombie” deeds, making clear their ineffectiveness, and setting forth the proper procedure for estate lawyers to follow in to transfer interests in land post-mortem. Specifically, Justice Macleod-Beliveau opined that where a transfer wasn’t registered prior to death the lawyer should bring an application in superior court for a certificate of pending litigation, a declaration of an interest in land, and for a vesting order under s.100 of the Courts of Justice Acts.
The Law before Thompson:
Prior to the Thompson decision, the law on “Zombie” deeds was somewhat unclear. Lawyers who attempted to register deeds/transfers of land post-mortem often cited the case of Winarski v Sproul as the legal basis for doing so. In fact, after the Winarski case, “Zombie” deeds were also commonly referred to as “Winarski” deeds.
In Winarski, the land transfer in question was signed before the transferor’s death, however, for general reasons of miscommunication between the party and their lawyer, it was never registered. Justice Pattillo found that the failure to register the transfer, for whatever reason, does not have “the effect legally of voiding the transfer”. Justice Pattillo did not comment on exactly how an estate lawyer should go about registering the transfer/deed post-mortem just that failure to register it during the lifetime of the transferor did not invalidate their intent to effect the transfer.
The Winarski ruling was somewhat problematic as it ran contrary to the Estates Administration Act and the Land Titles Act. In both pieces of legislation, reference is made to the fact that at the moment of death, a deceased person ceases to be able to convey interests in property. Furthermore, the Director of Land Titles has indicated that such transfers will be cancelled if caught.
The Law after Thompson:
The facts in Thompson are somewhat unique as “Zombie” deeds are often utilized to create a joint tenancy thus allowing a title to pass by survivorship rights, although, in Thompson, the intent was to sever an existing joint tenancy. Thompson makes it clear that the proper method to deal with a “Zombie” deed is not to register it with the Land Registry Office on behalf of the deceased but rather to bring an application to have the title vested in the intended transferee under s.100 of the Courts of Justice Acts, assuming you have evidence to support such an application.
In Thompson, Justice Macleod-Beliveau granted the vesting order by relying on evidence that established the deceased’s clear and unequivocal instructions to effect the transfer with the assumption that registration will occur without delay. The lawyer provided this evidence in the form of the unregistered deed, their notes, and their testimony at trial.
Conclusion:
Attempting to effect a post-mortem transfer of title is forbidden by the Director of Titles and can be prevented with proper estate planning. The ruling in Thompson sets out the expectations for how to best address such unfortunate situations.
This blog post was written by Heather Austin-Skaret, a Partner in the Real Estate, Wills and Estates, and Estate Litigation teams, and Summer Student Colton Allen. Heather can be reached at 613-369-0356 or at [email protected].
