ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-285
DATE: 2012/10/01

BETWEE N:

ALFRED ROSS MARACLE JR.

R. A. Detlor, for the Applicant

Applicant

• and -

NEIL MARACLE

E. A. Brant, for the Respondent

Respondent

HEARD: September 27, 2012

The Hon. Mr. Justice Harrison S. Arrell

JUDGMENT

INTRODUCTION:

1The applicant is the son of the testator Alfred Ross Maracle. The respondent is also the son of the testator. All persons involved are status Indian persons within the meaning of the Indian Act R.S. 1985 C. 1-5 and amendments thereto.

2The testator, in his will dated December 18, 1984, left parcels A and B of Lot 34, Concession 1 Tyendinaga Mohawk Territory to the applicant. It is alleged that the testator subsequently transferred the 2 parcels to the respondent and himself as joint tenants.

3The applicant brings this application to have the subsequent transfer declared a nullity and a declaration that the transfer in the will to him is valid.

FACTS:

4The parties and the testator are status Indians. They are entitled to “own” property on the “territory” by way of holding a Certificate of Possession.

Indian Act , supra

5The applicant and respondent were two of a number of children of the testator. They are half brothers. The respondent lived with his father during most of his life and up until his father’s death.

6The testator was a business man and entrepreneur. He had difficulty reading and writing. He acquired approximately 32 various parcels of land over his lifetime and ensured that there were title documents evidencing the purchases and transfers to all of them.

7The testator acquired the lands in issue being parcels A and B of Lot 34 on November 21, 1967 from the estate of Hubert Claus.

8The testator executed his will on December 18, 1984. There is no dispute regarding the validity or any insufficiency to the will.

9The testator, through his will, appointed the respondent as administrator. In the will he distributed various parcels of land to various children. Specifically the applicant was to receive parcels A and B of Lot 34. The respondent was to receive other lands. All properties were particularly described in the will and indeed the term Joint tenancy was used on two occasions.

10I conclude that the testator knew exactly what he was doing when he executed his will and there is no evidence to the contrary.

11On September 26, 1997 the testator purported to transfer parcels A and B of Lot 34 to himself and the respondent as joint tenants. It is uncontroverted that the respondent was not aware of this transfer until after the death of his father on March 24, 2002, as a result of receiving Certificates of Possession.

12The testator transferred other parcels of property to the respondent, the applicant and other children on September 26, 1997.

13On November 18, 1992 the testator sold Lot 21L-1-2 Concession A to the applicant. It is unclear from the handwritten receipt as to how he took title. He received a Certificate of Possession for this land on June 6, 2002, some 10 years later and subsequent to the death of his father. The Certificate was pursuant to an Application dated September 26, 1997 made by the testator, which significantly was the same date he filed the Application to transfer Parcels A and B to the respondent. Both Applications indicate both sons were to take their respective properties as joint tenants with their father.

POSITION OF THE PARTIES:

14The applicant argues that his father was an unsophisticated man who had difficulty reading or writing. As a result he did not know what he was doing when he transferred the property in question to the respondent. Specifically he did not know what joint tenancy meant.

15The applicant further argues that the transfer was flawed as not being pursuant to the conditions set out in the Indian Act, and therefore is a nullity.

16The respondent urges me to find that although the testator had little formal education there is absolutely no evidence before the court to indicate he had any diminished capacity when transferring the property in question. The respondent further argues that the testator’s clear intention, as evidenced by the transfer, was to provide for the respondent on his death. He further argues all technicalities have been complied with as evidenced by the confirming approval of the Department of Indian Affairs and the Band Council in issuing to him a Certificate of Possession for the land in question.

ANALYSIS:

17The evidence before me leads to the conclusion that the testator, although of limited education, was experienced in business, land purchases and sales, and the necessary documentation required in such transactions. There is no evidence of any diminished capacity at any time in his life and certainly not when he made his will or later when he purported to transfer the property in question. Indeed the evidence is to the contrary from both the respondent and his brother Bruce.

18I conclude that at all relevant times the testator knew exactly what he was doing.

19I reject the argument that he lacked the capacity to understand joint tenancy. He used it in his will for certain properties and not for others. He used it on the subsequent transfer in question and when he filed the Application to transfer Lot 21L-1-2 to the applicant. I fail to understand the significance attached to the argument of the applicant that the testator was confused about the term joint tenancy and therefore the transfer should fail. It is clear that the testator intended to benefit the respondent with this land upon his death; he could have changed his will or transfer it by joint tenancy-he elected the later.

20The applicant takes no exception to his father having the ability to instruct and execute his will but, with no evidence in support, suggests he did not understand what he was doing when subsequently transferring the property five years before his death. He also takes no exception to other transfers of property the testator made to the applicant and others on the same date. As such I reject that argument.

21This court concludes, having found the testator had full capacity at all relevant times, that his intentions were clear. In 1984, when executing his will, he wanted the applicant to have the two parcels of land in question. As well he wanted the respondent and his other children to likewise inherit other parcels of land.

22Approximately 13 years later he had changed his mind and wanted the respondent to have the land in question and other children to have other parcels. No evidence was produced to assist in why he changed his mind but the reason is irrelevant, as the evidence is clear that he did. He wanted to continue to have some control over the land while alive but ultimately to benefit the respondent on his death. The effect was basically the same as if done through the will.

23The final argument of the applicant is that the transfer did not meet certain terms and conditions.

24The fact is clear that the respondent did not know his father had transferred the property in question to him.

25The application for Registration of Indian Lands dated December 3, 1997 names the grantor as the testator and the grantees as he and the respondent. It was accepted and registered on December 12, 1997 as instrument # 257448. Attached to that application was a document entitled “Transfer of Land in an Indian Reserve” pursuant to the Indian Act .

26The essence of the applicant’s argument is that only the testator signed as “Transferor” and the respondent did not sign in the space below the testator which was also entitled “Transferor”. There is no authority before me that such signing is a condition for a valid transfer under the Indian Act.

27I find no merit to this argument.

28The document clearly states that the transferor is the testator. He is transferring the property to he and his son as joint tenants for one dollar. He and his son are the recipients of this transfer of property and are therefore the “transferees”. There is a no place on this document where the transferees are required to sign. The respondent was never the transferor.

29The officials in the Department of Indian Affairs and at the Band Council found no deficiencies in this Application and issued a Certificate of Possession and registered the document.

30It is significant that the testator made a similar Application for Registration of Indian Lands regarding Lot 21L-1-2 in favour of the applicant on exactly the same date being September 26, 1997. This application was filled out exactly the same way with both being listed as joint tenants and it likewise was not signed by the applicant as “Transferor”. On the same day the testator filed an identical application to transfer Lot 21L-1-1 to he and the respondent as joint tenants. The applicant takes no issue with this transfer. It is hard to reconcile the applicant’s complaint of deficiencies regarding the transfer to the respondent but not any deficiencies, when done identically, in the transfer of different property to himself.

31I find that the transfer of Lots A and B on September 16, 1997 to the respondent and his father as joint tenants to be valid. The right of survivorship therefore transfers the property to the respondent upon the death of his father on March 24, 2002 and as a result the property does not form part of Alfred Ross Maracle’s estate and the application is dismissed.

32If the parties are unable to agree on costs they may file no more than 3 pages of double spaced submissions in addition to any relevant offers or bill of costs within 15 days of the release of this decision.