Trevor Todd and Jackson Todd have over 60 years combined experience in handling contested estate issues, including joint tenancy matters.
Tapp Estate v Drews 2026 BCSC 1471 contained a detailed discussion re the law relating to joint tenancies in real property in British Columbia.
British Columbia operates under the Torrens system of land holding.
[29] The Land Title Act, R.S.B.C. 1996, c. 250 [LTA], and particularly s. 23(2) of the LTA, addresses the presumption of indefeasible title:
23 (2) An indefeasible title, as long as it remains in force and uncancelled, is conclusive evidence at law and in equity, as against the Crown and all other persons, that the person named in the title as registered owner is indefeasibly entitled to an estate in fee simple to the land described in the indefeasible title, subject to the following …
[30] The presumption of indefeasible title may be rebutted in certain circumstances and based on evidence existing in individual cases. This can arise, for example, when a transfer of title to land is gratuitous, particularly as between a parent and an adult child. In such case, the presumption of resulting trust may displace the presumption of indefeasible title: See Petrick (Trustee) v. Petrick, 2019 BCSC 1319 at paras. 41-47. The presumption of a resulting trust as well as the presumption of indefeasible title will not be engaged when the actual intention of the transferor at the time of transfer is clear on the evidence: Petrick at para. 47.
[31] In the Petrick case, Madam Justice Francis also comments specifically about joint tenancy:
[35] A joint tenancy is defined by the confluence of the four unities: unity of title, interest, time and possession. The four unities were described by Dickson J.A. in Zeligs v. Janes, 2016 BCCA 280 [Zeligs], as follows:
[39] Unity of title means the title of each joint tenant arose from the same act or instrument. Unity of interest means their holdings are perfectly equal in nature, extent and duration. Unity of time means all the interests vested simultaneously. Unity of possession means each joint tenant has a right to present possession and enjoyment of the whole property, but no right to exclusive possession of any individual part of the whole. Assuming all four unities are present, the question of whether a joint tenancy or a tenancy in common has been created is determined by the intention of the grantor: B. Ziff, Principles of Property Law, 6th ed. (Toronto: Carswell, 2014) at 336; Felske Estate at para. 31.
[36] In Zeligs, Dickson J.A. noted that joint tenancy is a popular form of estate planning, because the “legal fiction of a unified singularity composed of more than one person may fit comfortably in a family context”: at para. 40. Unfortunately, as this case demonstrates, joint tenancy as an estate planning device can often create unexpected problems, particularly when the interests of people or entities outside the family context are affected.
[32] Madam Justice Francis notes that the distinguishing characteristic of joint tenancy is the right of survivorship, whereby a surviving joint tenant receives a full interest in the property upon the death of the other.
[33] At para. 40, she continues:
[40] Not all jointly owned property is subject to a true joint tenancy. Pursuant to the Supreme Court of Canada’s decision in Pecore v. Pecore, 2007 SCC 17 [Pecore], property that is held in joint tenancy can give rise to three potential scenarios in terms of the beneficial interests of the title holders:
- a) A true joint tenancy, in which the joint tenants are each owner of the whole. Each enjoys the full benefit of property ownership and the ultimate survivor will enjoy the whole title for him or herself.
- b) A resulting trust, wherein only one joint tenant has any beneficial interest in the property and the other joint tenant, usually a gratuitous transferee, holds title in trust for the other and has no beneficial interest in the property.
- c) A scenario which is sometimes referred to as a “gift of the right of survivorship,” wherein a joint tenant is gratuitously placed on title and has no beneficial entitlement to the property during the lifetime of the donor, but if the donee survives the donor, the donee will receive the entire property by right of survivorship. In Bergen v. Bergen, 2013 BCCA 492 at para. 37 [Bergen], Newbury J.A. described a gift of the right of survivorship in a joint account as “an immediate gift of a joint interest consisting of whatever balance exists in the account on the transferor’s death, assuming he or she dies first.”
There has been some debate as to whether the inter vivos gift of a right of survivorship as described in Pecore is a new kind of gift, or whether Rothstein J. was simply describing an implied trust when discussing the beneficial entitlement that arose on the facts in Pecore: Michael Welters and Emma McArthur, “Pecore’s Troubles” (2010) 29 Est. Tr. & Pensions J. 139 at 156–157; Donovan Waters, “Sawdon Estate v. Sawdon: The Ontario Court of Appeal Rejects the Existence of Any Pecore Confusion” (2015) 34 Est. Tr. & Pensions J. 113 at 117–118. Either way, post-Pecore, it is possible for a donor to make a gratuitous transfer into joint tenancy which will be an immediate inter vivos gift but will allow the donor to retain the whole beneficial interest during the donor’s lifetime, and have the property pass to the surviving joint tenant on the donor’s death.
[34] The right or ability of the donor to deal with the property—and thus the extent and value of the survivorship equity available to the surviving joint tenant—was addressed by the Court of Appeal in McKendry v. McKendry, 2017 BCCA 48:
[29] So long as the requirements of a binding gift are met, the owner of property may, during his or her lifetime, make an immediate gift of a joint tenancy, including the right of survivorship. This is so regardless of whether the donee of the gift is to hold it for the benefit of the donor while he or she is alive. When gifted inter vivos, the right of survivorship is a form of expectancy regarding the future. It is a right to what is left of the jointly-held interest, if anything, when the donor dies: Simcoff v. Simcoff, 2009 MBCA 80 at para. 64; Bergen v. Bergen, 2013 BCCA 492 at para. 37; Pecore at paras. 45-53.
[30] A donor may gift the right of survivorship, but continue to deal freely with property throughout his or her lifetime. In Simcoff, Steel J.A. explained why:
64 Simply, and conceptually, the fact that a “complete gift” may have been given and that this gift included a right of survivorship does not, prima facie, prevent a donor from dealing with the retained joint interest while alive. The right of survivorship is only to what is left. Accordingly, if one joint owner drains a bank account (in the case of personal property) or severs a joint tenancy (in the case of real property), there is nothing in the right of survivorship itself that somehow prevents this. In commenting on the issue of survivorship in Pecore, Rothstein J. wrote (at para. 50):
Some judges have found that a gift of survivorship cannot be a complete and perfect inter vivos gift because of the ability of the transferor to drain a joint account prior to his or her death: see e.g. Hodgins J.A.’s dissent in Re Reid [(1921), 1921 CanLII 534 (ON CA), 64 D.L.R. 598 (Ont. C.A.)]. Like the Ontario Court of Appeal in Re Reid, at p. 608, and Edwards v. Bradley, [1956 CanLII 32 (ON CA), [1956] O.R. 225] at p. 234, I would reject this view. The nature of a joint account is that the balance will fluctuate over time. The gift in these circumstances is the transferee’s survivorship interest in the account balance – whatever it may be – at the time of the transferor’s death, not to any particular amount.
[35] Finally, our courts have also dealt with situations in which the transfer of an interest in land is done to defeat or avoid creditors actions. In the case of Pattinson v. MacDonald, 2021 BCSC 652, Madam Justice Gropper stated the law succinctly:
[26] However, even where no consideration is paid for the transfer, a party who transfers land to avoid creditors may not reclaim it.
[27] This was set out by the Court in Guthrie v. Abakhan & Associates Inc., 2017 BCCA 102, at para. 19:
In fact, the law is clear that a fraudulent conveyance is only ‘voidable’. For one thing, it continues to be valid, or “absolute”, against the grantor. Thus, in Elford v. Elford (1922), 64 S.C.R. 125 (S.C.C.), the Court ruled that a husband who had transferred property to his wife “in pursuance of an unlawful design” to defeat his creditors could not re-claim it back from her.
[28] In this case, the facts clearly support that Ms. Pattinson transferred the property in 1986 to avoid claims of her ex-husband and her common-law husband’s ex-wife. In her original notice of civil claim, she said she transferred it to avoid creditors. In her examination for discovery of May 22, 2019, she said that she transferred the property to avoid “frivolous claims” by possible creditors of her new business venture.
