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).
28. Cases cited by counsel that have dealt with agreements regarding joint tenancies and survivorship interests have turned on the factual context of the terms of the agreement.
29. In Parry v. Sullivan (1979), 9 R.F.L. (2d) 349 (B.C. S.C.), the parties had entered into a separation agreement following breakdown of marriage in which the husband agreed that the home would be conveyed to himself and the plaintiff as joint tenants. The plaintiff alleged that in exchange for the right of survivorship, she relinquished all claims against the husband’s estate. Three years after the agreement, the husband severed the joint tenancy. The plaintiff claimed that the husband was in breach of contract in severing the joint tenancy. The husband had never agreed to a joint tenancy with the plaintiff prior to the separation agreement but had indicated to the plaintiff in negotiations for the separation agreement that he would likely die first, evidence that led the Court to imply a term that the jointure would continue until otherwise agreed by the parties.
30. In Henderson v. Henderson (1998),  2 W.W.R. 389 (B.C. S.C.), var’d 2000 BCCA 6 (B.C. C.A.), there was a written agreement that said what was to occur upon the death of each joint tenant. To give effect to the meaning of the words in the contract, the Court concluded that the agreement was clear that the property would be held in joint tenancy and the right of survivorship would apply to both parties. There had been specific discussion of survivorship in that case.
31. In Glass v. McCargar Estate, 2001 BCSC 249 (B.C. S.C. [In Chambers]), there was a written agreement that specified that the property would be purchased by the parties in joint tenancy with the right of survivorship. The plaintiff sought to imply a term that the tenancy could not be severed. While the Court accepted that it was the mutual intention of both contracting parties that the property be held in joint tenancy, it did not follow that both parties also intended the agreement to bind them in a joint tenancy until such time as they both agreed to sever it. The implication of such a term was not necessary to give effect to the agreement. There was no evidence that the parties addressed their minds to the duration of the joint tenancy. Although there was secrecy surrounding severance of the joint tenancy, the Court ultimately said at para. 21 that if the tenancy was to remain joint forever, a term should have been included in the contract.
32. In McDonald v. Eckert, 2004 BCSC 323 (B.C. S.C.), the plaintiff and his wife had owned property in joint tenancy for many years with the expectation that the plaintiff would die first. When the wife became very ill, she severed the joint tenancy and transferred her interest in the property to her four children as joint tenants. The plaintiff did not find out about this until after the wife died. He then claimed that the wife had breached an agreement that the survivor of them would become sole owner of the house upon the death of either of them. The Court concluded that the evidence fell short of establishing such an agreement. The plaintiff bore the burden of proof. He had given different versions of the agreement and his evidence was vague, uncertain and inconsistent. The deliberate secrecy of the wife raised suspicion but did not prove the agreement. The trial judge concluded that the wife concealed the transaction because she knew that the plaintiff would not agree with it.
33. Here, both parties entered the joint tenancy knowing that it could be unilaterally severed lawfully at any time. Fraik knew at all times that Bernard never intended that Fraik receive all of the interest in the property upon her death. Bernard never agreed to Fraik’s suggestion as to how to deal with Pilon’s interest in the property. Fraik agreed in discovery that Bernard never agreed not to sever the joint tenancy and never agreed as to how Pilon’s interest in the property would be protected. Bernard and Fraik had a troubled relationship living in the same house at the time. They had never agreed on what Fraik’s interest should be beyond the historical 1/3 interest. Bernard particularly avoided discussion of this with Fraik. The plaintiff’s evidence about an alleged agreement for survivorship was conflicted, vague, and uncertain. I reject the suggestion that Bernard transferred the house to Fraik in return for Fraik’s forbearance to sue for her entitlement. The plaintiff has failed to prove that there was an agreement that Bernard would not sever the joint tenancy.
34. Bernard’s attendance with a lawyer of her choosing days later to sever the joint tenancy and maintaining secrecy about it afterwards could raise suspicion. However, in the circumstances of the joint tenancy transaction and Bernard acting quickly to sever, it could be inferred that Bernard never intended to create a survivorship or to create a presumption that Fraik had an equal interest in the property. The inference supported by the will executed at the same time as the severance is that Bernard intended to gift a greater portion of the property to Fraik but did not intend to give her the equitable interest of survivorship. Fraik never had the expectation of survivorship because she always knew that her mother intended that her other daughter would also share in the property. She also knew that Bernard had never agreed about any interest of Fraik’s above the 1/3 that had existed for many years since any renovations and that had been re-affirmed many times in changes to the registration. It appears that Bernard sought only to end the increasingly bitter and relentless pursuit of a greater interest in the property by the plaintiff. Once Bernard obtained legal advice, she did what she was entitled to do in the absence of an agreement.
35. In these circumstances, the Court will not imply a term that Bernard would not sever the joint tenancy. Nor is there any basis for this Court to declare that the property should be registered 2/3 to Fraik and 1/3 to Pilon.
Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.