Fraik v Pilon 2012 BCSC 528 dealt with a case alleging a breached agreement to not sever a joint tenancy interest that was dismissed by the court.
The Plaintiff lived with her mother in the mother’s house as tenants in common after 1987 with the plaintiff having 1/3 interest and mother a 2/3 interest .
The property was registered in 1999 as joint tenancy .
One week later the mother severed the joint tenancy and executed a new will leaving her half interest to her other daughter.
The mother died in 2007.
The Plaintiff brought action against the estate claiming inter alia a breach of agreement not to sever joint tenancy.
The only evidence of an agreement that the joint tenancy would not be severed and that the plaintiff would provide Pilon with a 1/3 interest in the property after the death of Bernard comes from the plaintiff herself.
Normally, a joint tenant may sever her interest in a joint tenancy in her lifetime and thereby convert the interest into an interest as a tenant in common (Fuller v. Fuller Estate, 2010 BCCA 421 (B.C. C.A.) at para. 51).
Therefore, the plaintiff must prove that Bernard agreed to relinquish her right of severance.
Since Bernard is deceased and the event is said to have occurred before her death, the plaintiff’s evidence should be examined with “the most careful scrutiny and indeed at the outset with some suspicion” (Miller v. Miller Estate (1987), 14 B.C.L.R. (2d) 42 (B.C. S.C.), at 51).