Resulting Trust Applies to Joint Tenancy Survivorship

Bergen v Bergen 2013 BCCA 492 at paragraph 42 states that when a property is purchased by one party, but held in joint tenancy, there is a presumption that the transferor intended to retain the entire beneficial interest, including the right of survivorship, unless there is evidence to the contrary.

Either joint tenant in land is at liberty to sever the joint tenancy at any time, thus undermining the notion that as a matter of law, a joint tenant receives of full and perfect inter vivos gift of the survivorship.

Severance, which occurs automatically upon the destruction of the four unities, results that each owner becomes entitled to a distinct share in the land, rather than an undivided interest in the whole.

For example, a joint tenant may sever the joint tenancy, and thus the survivorship, by transferring the property to himself or herself and need not even notify the co-owner.

In Simcoff v Simcoff 2009 MBCA 80 , a case involving land, stated the fact that a complete a gift included a writer survivorship does not, prima facie prevent a donor from dealing with the retained interest, while alive. The right of survivorship is only to “what is left”. In the case of real property, nothing remains of the right of survivorship.

Bergen went on to state that it remains true that once a gift has been made of an interest in real property or any other type of property, the gift cannot be revoked whether the transfer retakes is a joint tenant or a tenant in common.

As stated in Fuller v . Fuller  2010 BCCA 421 the gift of a joint interest in real property is in inter vivos rather than a testamentary gift and cannot be retracted by the donor is a “complete and perfect” inter vivos gift. (Paragraph 53)

At the same time, in cases where the property was provided by the transferor, the transferee must still prove that a gift was intended i.e. he or she must rebut the presumption of resulting trust.

At paragraph 53 of the leading case on resulting trust Pecorev Pecore 2007 SCC 17 , the court stated, of course, the presumption of a resulting trust means that it will fall to the surviving joint account holder to prove that the transfer or intended to gift the right of survivorship to what it ever assets are left in the account to the survivor. Otherwise, the assets will be treated as part of the transferor’s estate to be distributed according to the transferor’s will.

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