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A 91-year-old Kelowna man who alleged that both his children, at different times, had tried to take his home has lost a legal challenge to block his daughter from having ownership of his condo.

The senior, Don Marlen Sandwell, took legal action against his daughter, Marleane Sayers, alleging that he should not have transferred the ownership of his property to her.

According to an April 19, B.C. Supreme Court decision Sandwell added his daughter, who also goes by Marleane Maxwell, to the title of his $500,000 Kelowna condo in 2020.

However, the 91-year-old argued he did not have "free, full and informed thought" and the advice he got from his notary was insufficient to make such a decision.

And it wasn't the first time Sandwell had had issues with his children trying to take his property.

According to the decision, in 2008 he executed a transfer of his home to his son, Floyd Tayler, for $1.

The transfer was never registered, and the lawyer that dealt with the file wrote a note on the papers saying they would not be used except with Sandwell's consent or in the event that his health failed.

These papers were discovered in 2020 after the lawyer died and Maxwell showed them to her father.

The decision says Maxwell told her father that her brother could take his entire property but she would "save" him from that happening.

An appointment was then set up with Kelowna notary Brendon Rothwell.

Both father and daughter filed affidavits with the court that tell a different story of how and why the appointment was booked.

"Dad told me that he wanted to sign over half the property to me. He told me he wanted me to have half the house now, and that I would get the rest of it when he died," Maxwell said in her affidavit.

However, Sandwell painted a different picture.

"Marleane told me she herself had an appointment to see a notary at 2:20 p.m. and that I should go with her. However, when I arrived, it was clear that the notary was expecting me, not her, and he had papers already drawn up adding Marleane to the title to my house. I believe that Marleane made the appointment to get on title to my house," Sandwell's affidavit reads.

According to the decision, the notary discussed with Sandwell the pros and cons of transferring the title to his daughter.

The following day Sandwell called the notary and said he didn't want to go ahead with the transaction.

However, a week or so later, he called back and said he wanted to go ahead with it.

Sandwell gave no detailed reason why he'd changed his mind.

In his statement to the court, the notary said he had concerns about "undue influence" but Sandwell had assured him he was "100 per cent positive" that he wanted to go ahead with the transfer so he did.

According to the decision Sandwell focused on the legal doctrine "unconscionable procurement" and "unjust enrichment" in his arguments against his daughter.

Sandwell also argued he had a brain tumour removed in 2009 and the tumour led to "impulsive and impetuous conduct."

Sandwell submitted 292 pages of clinical notes in evidence along with a doctor's note that said the injury may precipitate "impulsive behaviour."

However, Supreme Court Justice Allan Betton dismissed the evidence for not being a "properly constructed expert opinion" which didn't reference how Sandwell's behaviour affected the issue at hand.

Justice Betton also said while Sandwell is 91 years old he is generally in good health with no evidence of any cognitive impairment.

In assessing all the legal arguments Justice Betton concluded the circumstances were unfortunate.

"It would always be preferable for disputes between parents and children to be resolved privately, but sadly that is often not the case," the Justice said. "This and many other cases are proof."

The Justice went on to say the parties had a troubled and sometimes estranged relationship over the years.

"The transaction occurred in what appears to have been a brief reconciliation period between the parties," the Justice said.

According to the decision, Maxwell who works as a Lower Mainland realtor, "expressed a desire" to be respectful of her father’s wishes during the two-day trial.

However, the Justice didn't buy it.

"This is contrary to her position in this litigation that ignores what her father’s wishes currently are, in favour of earlier wishes that benefit her," the Justice said.

"This case is, however, about the legal enforceability of the plaintiff’s actions. It is my conclusion that the transfer of the interest in the property is legally sound."

With that, he dismissed the Sandwell's case against his daughter.

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