Non est factum is the plea that a deed or other formal document is declared void for want of intention. Non est factum places the legal onus on the person attacking the transfer or gift to prove “no intention”. This is a defence and is distinct from grounds of attacking a gift where the onus is on the person alleging that a valid gift was made or a valid wealth transfer occurred.1 Non est factum is a defence, developed in the court of common law not equity:
[W]here a document was executed as a result of a misrepresentation as to its nature and character and not merely its contents the defendant was entitled to raise the plea of non est factum on the basis that his mind at the time of the execution of the document did not follow his hand.”2
Non est factum is a defence whose application is restricted to those circumstances where the person relying on it must show: 1) they were not careless, and 2) the document signed was different from the one they thought they were signing.3
RECENT NOTABLE NON EST FACTUM DECISIONS
(i) Servello v. Servello, 2014 ONSC 5035, aff’d 2015 ONCA 434
Non est factum was proven in the case of Servello v. Servello, 2014 ONSC 5035, aff’d 2015 ONCA 434, where a mother thought she was signing power of attorney documents, when really she was signing a transfer of the title to her property into her son’s name. The court found that non est factum applied and the transfer of an interest in the property to her son was void:
Whatever it was that [the mother] thought she was signing at the time, I am confident that she did not believe that she was signing a document that transferred her entire property, including the home property, to Antonio. She had made it clear throughout her life that she intended to treat her children equally upon death, and there was no reason for her to transfer the entire home property to one of her eight children.4
Facts And Other Legal Considerations
The facts of this case focused on an inter vivos transfer of a mother’s property to her son. Shortly after the death of his father, a son attended a registry office with his mother, and with the assistance of a conveyancer, the title to the mother’s house was transferred to himself as sole owner. The mother’s first language was Italian and her comprehension and reading in English was limited. Her understanding at the time was that she was attending a court house so that her son could sign a document which would give him “the power to look after her” as she grew older. Thirteen days later the son returned to the office and he transferred the property to himself and his mother as joint tenants.5
Three years later, the mother attended the registry office with one of her daughters and had a title search completed on her house. This was the first time that she became aware that he son had acquired a right of survivorship in her home. The son refused to restore title to the property to his mother. She sought an order from the court restoring her as the property’s sole owner.
At the time of the transfer, the son was living in his mother’s house, the mother was recently widowed, English was not her first language and the family had always used the same lawyer for all of their legal dealings. The son chose however to take his mother directly to the registrar’s office, did not use the family lawyer, and used a conveyancer who was a stranger to the mother and who did not speak Italian. The son who received the benefit of the transaction was by her side throughout.6 The court held that the transfer of the property into joint tenancy should be set aside and that the mother should be restored as sole owner, finding that:
The law is clear that in the case of gifts or other transactions inter vivos, the natural influence as between a mother and son exerted by those who possess it to obtain a benefit for themselves, is undue influence.
The presence of undue influence by a child over a parent requires that the parent have independent legal advice. Rosina did not receive independent legal advice, and accordingly the two deeds which gave Antonio an interest in the land should be set aside on this basis as well.7
The son’s appeal was dismissed, with the Court of Appeal noting that the trial judge’s finding of undue influence was “supported by the evidence”.8 The son “lived in the [mother’s] home; the [mother] was recently widowed; her first language was Italian and she had limited comprehension and reading ability in English; and she did not receive independent legal advice.”9
(ii) Belchevski v. Dziemianko:
2014 ONSC 6353 (CanLII); http://canlii.ca/t/gfgtk
Another recent case where non est factum was plead but not applied, was in the decision in Belchevski v. Dziemianko:
Non est factum is a difficult plea to make out; it requires that the party signing a document must have a fundamental [mis]understanding as to the nature or effect of the document and must not be guilty of carelessness in signing the document without being aware of its contents: see Marvco Color Research Ld. v. Harris,  2 S.C.R. 774; Bhuvanendra v. Sivapathasundram 2014 ONSC 278 at para. 49; and Roth Estate v. Juscheka, 2013 ONSC 4437 at para. 143.10
The Court found that the parents understood the true nature and character of the transaction (they transferred title in their home into to joint tenancy with their daughter) at the time of transacting.11 Also there was sufficient evidence to show that the parents intended to gift the home to their daughter as a “complete and unconditional gift”. The lawyer who executed the transfer spoke Macedonian (the parents’ language), was a senior member of the Ontario bar, had completed thousands of real estate transactions, he always made sure his clients understood what he was doing and the documents they were executing, he took contemporaneous notes that confirmed a gift during their lifetime and clearly explained what joint tenancy meant.12
Non est factumcan be employed as a creative equitable defence.
1. See McNamee v. McNamee, 2011 ONCA 533 at para.24; John Poyser, Capacity and Undue Influence, (Toronto: Carswell, 2014) at p.438 (“Poyser”); and Bruce Ziff, Principles of Property Law, 3rd ed (Toronto, Carswell:2000), at p.455.
2. Marvco Color Research Ltd. v. Harris,  2 S.C.R. 774, 141 D.L.R. (3d) 577.
3. Beer v. Beer (1997), 43 O.T.C. 115, 13 R.P.R. (3d) 33 (Ont. Ct. (Gen. Div.)) at para. 26.
4. 2014 ONSC 5035, aff’d 2015 ONCA 434 at para. 44.
5. 2014 ONSC 5035 at paras. 1-4.
6. Servello v. Servello 2014 ONSC 5035 at para. 47.
7. Servello v. Servello at paras.48-49.
8. Servello v. Servello 2015 ONCA 434 at para. 3.
9. Servello v. Servello 2015 ONCA 434 at para. 3.
10. 2014 ONSC 6353 at para. 18.
11. 2014 ONSC 6353 at para. 20.
12. 2014 ONSC 6353 at para. 21.