Court File and Parties
Court File No.: CV-25-00739113-00ES
Date: 2025-04-30
Court: Ontario Superior Court of Justice
Re: Estate of Laura Jeanne Helwig, Deceased, as represented by Jon Hagan and Ryan Burger, Estate Trustees for the Estate of Laura Jeanne Helwig, Applicant
Before: Frederick L. Myers
Counsel: Josh Minster, for the Applicant
Heard: 2025-04-30
Endorsement
Registering Zombie Transfers/Deeds
1The Director of Titles apparently will not accept for registration a deed containing Land Transfer Tax Statements drafted in the name of the vendor if she has died between the date of the delivery of the deed and the date of registration. The standard form of Land Transfer Tax Statement has the vendor making positive statements in the present tense commencing with the words “I am.” The statements were true when the deed was delivered but cannot be said in the present tense on registration by a person who has died.
2I am told by a lawyer witness that deeds with Land Transfer Tax Statements containing representations that were true when delivered but cannot be made after the vendor has died are referred to as “zombie transfers/deeds.”
3The witness advises that the “Land Transfer Administrative Policy, overseen by the Office of the Director of Titles, no longer allows 'Zombie' Transfers/Deeds to be registered in Ontario Electronic Land Titles Systems.”
4I have not been provided with a copy of this policy statement nor its legal basis.
Title Passes When the Deed is Signed and Delivered
5I agree with Justice MacLeod-Beliveau at paras. 64, 73, and 79 to 84 of Thompson v. Elliott Estate, 2020 ONSC 1004, that under the Land Titles Act, title passes from transferor to transferee when the deed is signed and delivered even if registration occurs later. As she set out, this was the holding of the Court of Appeal in Hooper v. Hooper (1953). This principle has been followed numerous times since then in a variety of contexts.
6In Thompson, Justice MacLeod-Beliveau disapproved of lawyers’ attempts to back-date zombie transfers/deeds so as to make them appear to be registrable under the Land Titles Act. She held that when a lawyer erroneously fails to register a transfer on a timely basis before the vendor passes away, the answer to address the lawyer’s error is not to mislead the Land Registry Office.
7Rather, MacLeod-Beliveau J. held that since zombie transfers/deeds are not recognized for registration, the proper course to register the transfer is to seek a vesting order under s. 25(1) of the Land Titles Act.
8Under s. 25(2) of the statute, the Director of Titles is required to give effect to vesting orders. Invoking the court’s authority to vest title will therefore get around any prohibition against registration of zombie transfers/deeds contained in an administrative policy. Subsection 25(2) will require the Director of Titles to accept the title documents for registration – revenant or otherwise.
The Facts
9In this case, on her deathbed, the vendor transferred title to herself and her nephew in joint title. Her lawyer attended to have the client sign the transfer in the afternoon. The vendor passed away before the documents were registered the next morning.
10According to the Court of Appeal, the transfer into joint tenancy was effective although the deed was not yet registered. When the vendor died, the nephew took title by operation of the law of survivorship.
The Estate of the Vendor Seeks a Vesting Order
11The applicant estate submits that I should vest title in the nephew following the most recent case on point being Justice MacLeod-Beliveau’s decision in Thompson.
12I accept horizontal stare decisis; but not when it puts me at odds with the Court of Appeal. Vertical stare decisis trumps horizontal stare decisis.
13Here, the nephew holds title to the property at law. There is nothing for me to vest in him.
14The estate seeks to use the court’s authority to vest title as a work-around for an administrative problem caused by the wording of a particular form about land transfer taxes. This isn’t a case of a lawyer trying to cover-up an error by misleading the Director of Titles.
15The issue is not vesting title. The problem is finding a way to file a Land Transfer Tax Statement on behalf of a vendor who has died in face of a policy statement prohibiting e-registration of zombie transfers/deeds. Can the estate trustees not complete the registration on behalf of the vendor? Is it only a problem with e-registration? Is paper still allowed? Can a personal representative not sign a Land Transfer Tax Statement on behalf of a vendor? How do people under disability convey property but through powers of attorney or personal representatives? One idea might be to change the word of the standard form Land Transfer Tax Statement for this transfer from “I am” to “She was.” Does the undisclosed “policy statement” or the whatever law, regulation, or executive edict that creates the templates for land transfer tax forms prohibit minor alterations to wording to ensure that the substance of the contents are true? If e-registration cannot handle form changes, how do representatives for vendors register transfers? Why can that not be done here?
16Perhaps there is a statute that bars transfers of land being registered if the deed is signed and the vendor dies before it is registered. Perhaps there is a statute that prevents title from passing if a Land Transfer Tax Statement form is altered to truthfully set out the representative status of a lawful signatory for the vendor. Perhaps there is a statute that makes a policy statement about e-registration determinative of title. None of this is before me.
17I do not understand a request for a court to vest title in the person who already holds it. Forcing people to go to court to obtain vesting orders when title is already vested in the owner seems to be an inapt mechanism to force the Director of Titles to register a lawful transfer due to the wording of the template of a tax form.
18However, I do not have the benefit of a factum or any law other than the Thompson v. Elliott Estate to which counsel referred me during the hearing. As noted above, I agree with the discussion of the law concerning title recited in that decision.
19Vesting orders vest title. But title is already with the transferee. The work-around is just using s. 25(2) as a kind of loophole in the zombie transfer/deed policy to force the Director of Titles to accept the documentation.
20I adjourn this application to allow counsel to deliver a factum and any legal authorities and statutory instruments on which he relies. He may wish to consider serving the Director of Titles.
21This application was brought on an urgent basis as the nephew is said to hope to sell the property before the end of May. There is no agreement of purchase and sale in place as yet apparently.
22Once the application is briefed and a sale is imminent, the applicant should file the appropriate document to request another urgent hearing.
23In the interim, I also direct the applicant to consider the title of this proceeding. Should the estate of the vendor be the applicant, or should the current owner be the applicant? If he is not an applicant, shouldn’t the owner/nephew be a party respondent since the relief sought is an order vesting title to the property in him? Should the Director of Titles be a party? Should he be served regardless? If this is a request for mandamus, is it the right type of proceeding in the right court?
Frederick L. Myers
Date: April 30, 2025