Joint Tenancy, Tenancy in Common and the Right of Survivorship

Joint Tenancy, Tenancy in Common and the Right of Survivorship

The BC Appeal Court in Zeligs Estate v Janes 2016 BCCA 280 had the following to say about Joint Tenancy, Tenancy in Common and the Right of Survivorship.

As people age they often transfer property gratuitously to their adult children, and then hold it with them in joint tenancy. Their goals may vary. Some seek assistance with financial management; some wish to gift survivorship rights; some envisage other forms of shared ownership. As the Supreme Court of Canada explained in Pecore v. Pecore, 2007 SCC 17 (S.C.C.) , the intention of the transferor governs what passes beneficially, if anything, in transfers of this sort.

38      Joint tenancy and tenancy in common are the two most common forms of concurrent property ownership in Canada. In a joint tenancy, the “four unities” of title, interest, time and possession are present and co-owners hold an equal interest in the property as a unified whole. The common law treats joint tenants as a single tenant: each holding the whole for all, with no distinct shares held by anyone. In contrast, in a tenancy in common one co-owner may hold a greater proportionate interest in the property than the other co-owner(s): Hansen Estate v. Hansen, 2012 ONCA 112 (Ont. C.A.) at paras. 29-30; Alberta (Public Trustee) v. Felske Estate 2007 ABQB 682 (Alta. Q.B.) at para. 31, aff’d 2009 ABCA 209 (Alta. C.A.); Rathwell v. Rathwell [1978] 2 S.C.R. 436 (S.C.C.) at 459.

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.

40      Joint tenancy is often the chosen form of concurrent ownership for family holdings, usually for estate planning purposes. This is unsurprising. The legal fiction of a unified singularity composed of more than one person may fit comfortably in a family context. Unfortunately, however, unity can be fragile and families are not always happy. As Abella J. remarked in Pecore , when divisions arise that unhappiness often finds its painful way into a courtroom.

41      The principal and distinguishing characteristic of joint tenancy is the right of survivorship, the jus accrescendi. When one joint tenant dies, his or her interest in the property is extinguished and passes to the surviving joint tenant(s). The right of survivorship is, however, a revocable expectancy that manifests only upon success in the so-called “ultimate gamble” – survival – and then only if the joint estate has not been previously destroyed by an act of severance: Estate of Propst, Re, 788 P.2d 628268 (U.S. Cal. Sup. Ct. in Banco 1990) at 631. When given inter vivos, a gift of survivorship rights is to what is left, if anything, when the gamble is won: Simcoff v. Simcoff, 2009 MBCA 80 (Man. C.A.) at para. 64.

42      The interest of a tenant in common is different with respect to survivorship. Unlike that of a joint tenant, a tenant in common’s interest in property remains intact upon death and passes into his or her estate: Fuller v. Fuller Estate, 2010 BCCA 421 (B.C. C.A.) at para. 53.

43      Importantly, parties may hold legal title to property in one form of co-ownership while holding equitable title in another. For example, a mother and daughter may be joint tenants in law and tenants in common in equity with respect to jointly-held property by virtue of a trust or an act of severance. If the mother dies first, the daughter assumes full legal title by right of survivorship, but the mother’s equitable interest, being held in common, passes to her estate and the daughter holds legal title as trustee for the beneficial owners, namely herself and her mother’s estate: Pecore at paras. 4-5; Ziff at 341-342.

44      Equity leans against joint tenancies: Law Reform Commission of British Columbia: Report on Co-Ownership of Land (1988) at 23. As explained in J. McGhee, ed., Snell’s Equity, 31st ed. (London: Sweet & Maxwell, 2005) at 103, the relevant maxim is that equity is equality. When a joint tenant dies the whole belongs to the survivor(s) and the deceased’s estate takes nothing, which favours the tenant(s) of longevity and is thus unequal, except perhaps for an equal chance at survival. For this reason, equity often treats persons who are joint tenants at law, such as business partners or unequally contributing co-owners, as tenants in common: Mischel Holdings Pty. Ltd. v. Mischel, [2013] VSCA 375 (Australia Vic. C.A.) at paras. 60-61.

Value of Contribution

Value of Contribution

The Value of Contribution of a parties to the acquisition or improvement of  an asset does not have to be in money and can take  various individual forms as was discussed in Mac v Mak 2016 BCSC 1140.

The Courts have to scrutinize the relationship and history of the parties and come to a conclusion on a case by case basis as to what if anything each party contributed little or no monies but instead did other things like free  labour in expectation of being put on title.

Mac v Mak was a dispute over ownership of a home that was previously held in joint tenancy by Sau Har Mak and her two daughters.

Sau Har Mak died in August 2012, and full title of the home passed to her daughters on her death.

Two of Sau Har Mak’s sons sought  a declaration that their sisters hold the property on resulting trust for Sau Har Mak’s estate and do not have beneficial ownership of the home.

[92]        The central issue before the Court is whether a joint tenancy was created between Sally Mak, Mary Mak and Sau Har Mak when the Mahon property was purchased on June 17, 1993.

Specifically, the Court must determine whether the transfer was gratuitous, and therefore the presumption of a resulting trust applies, or whether beneficial ownership is governed by the presumption of indefeasible title in favour of Sally and Mary Mak.



[119]     In Virk v. Pannu, 2006 BCSC 921, aff’d Bajwa v. Pannu, 2007 BCCA 260, Baljit Kaur Bajwa and her mother, Balwant Kaur Virk, together with the defendant, Rupinder Pannu, purchased a property as joint tenants for $249,000.  Ms. Bajwa and Ms. Virk as plaintiffs had provided the down payment of $35,000, and the balance of the purchase price came from a mortgage with their financial institution.  Mr. Pannu did not contribute any money towards the purchase, but became a covenanter on the mortgage.  He assisted in searching for the property and engaging a realtor.  The court held that the onus was on the plaintiffs seeking to displace the presumption of indefeasible title created by s. 23(2) of the Land Title Act and there was no cogent evidence doing so.  The court held that the presumption of resulting trust did not apply because Mr. Pannu had given “value” for his interest, and he was not unjustly enriched if he retained a one-third interest in the property.

[120]     As noted by the Court of Appeal in Bajwa, “[w]hether value is given is a question of fact to be determined on the evidence in each case”: para. 16.  As the facts in Bajwa indicate, value does not necessarily involve the contribution of money: para 16.  The court stated:

[16]      The Virks rely on Professor Waters’ text, Law of Trusts in Canada, 2d. ed. (Toronto: Carswell, 1984) at 299. The passage on that page of the text says that for a resulting trust to be inferred the person said to be a trustee must have given no value for his legal interest. It follows that if it is found as a fact that the person whose equitable interest is challenged did give value, there can be no resulting trust. Whether value was given is a question of fact to be determined on the evidence in each case. …

See also Chuang, paras. 10 and 11:

[10]      Whether a transfer is found to be gratuitous, and therefore whether the presumption of resulting trust arises, is a question of fact, and even the exchange of money is not determinative (Modonese) [Modonese v. Delac Estate, 2011 BCSC 82]. In this case, although the Claimant did pay some money towards the purchase of the Property, the registration as a 50% owner, as opposed to the 15% she contributed, was based on the parties’ intention to have a life together. There may be cases where unequal contributions leading to equal ownership will not be gratuitous (if for example the deal could not be completed without the lesser contributing party’s contacts), but those would seem to be different from the present case. In Miller v. Walker, 2006 ABQB 424 [Miller], the court found that unequal contributions to a property that was immediately registered as a joint tenancy raised the presumption of resulting trust (although the presumption was rebutted in that case). Further, the Claimant herself argues (and not merely in the alternative) that the presumption of advancement applies, and since the presumption of advancement only arises on gratuitous transfers, her position would seem to implicitly concede that the transfer was gratuitous.

[11]      The presumption of resulting trust can itself be rebutted by the presumption of advancement, and either presumption can be defeated by evidence of a contrary intention on the part of the donor.

See also Klein v. Wolbeck, 2016 ABQB 28 at para. 176:

Put aside the difficulty that Mr Klein did not transfer the Lands to Ms Wolbeck since the transferors were Mr Klein’s parents. The doctrine of resulting trust has no purchase because Ms Wolbeck did provide value. She was also a mortgagor. Her acquisition of her joint interest was not a gratuitous transaction: Lutz v Lutz, 2013 ABCA 159 at para 12. Mr Klein did not put up the entire down payment himself and gratuitously cause the certificate of title to reflect a joint interest for Ms Wolbeck.

[121]     The courts have occasionally found that unequal contributions leading to equal ownership may be considered a gratuitous transfer: Chuang at paras. 10 and 11.

Joint Account Holders Are Fiduciaries

Joint Account Holders Are Fiduciaries

MacKay v. MacKay Estate,2015 ONSC 7429, held that one joint account holder may serve as a fiduciary in relation to the other simply via the traditional indicia of such a relationship as set out in Frame v. Smith, [1987] 2 SCR 99 (i.e., the ability by the fiduciary to exercise unilateral control over the beneficiary’s interests; the vulnerability of the beneficiary).

In MacKay, supra, the defendant daughter-in-law had been added as a joint account holder to her mother-in-law’s account in order to help her with her day-to-day finances; this occurred while the mother-in-law retained capacity. The daughter-in-law did not hold power of attorney. She was her mother-in-law’s main caregiver, emotional support and confidante. In her capacity as joint account holder, in addition to covering the mother-in-law’s expenses, she paid herself a modest weekly sum in compensation for her services. The son (ex-husband of the daughter-in-law at the time of litigation), who held power of attorney for his mother, brought an action against his ex-wife seeking an accounting and repayment of the funds in question.

The court held that the daughter-in-law had a fiduciary obligation to her mother-in-law in her management and operation of the joint bank account, but that she had not breached her duty; her payments to herself were reasonable in the circumstances.

The holding in MacKay underscores the principle that the prima facie nature of a joint account—that is, of its being equally owned and equally subject to the discretion of all account holders—will give way, in some circumstances, before deeper considerations of equity.

In some respects MacKay stands for this proposition more strenuously than Pecore itself, as the former is less reliant on traditional doctrines concerning gifts and donors’ intentions. MacKay does not treat the nature of a joint account as an either/or proposition by which either a gift or trust is created. Rather, MacKay concerns itself solely with the question of fiduciary obligations, specifically as they may arise in the context of a “typical” joint account where one party is vulnerable to the discretion of the other.

Joint Tenancies Require “The Four Unities”

Joint Tenancies Require "The Four Unities"

Joint tenancies require The Four Unities in order to be valid. A true joint tenant must have perfect equality between them so that joint tenants have an equal interest in the property.

Any act that destroys one of the four unities will make the interest between the joint tenants on equal and thus will bring the joint tenancy to an end.

The four unities are as follows:

  1. Unity of Interest: the interests of all joint tenants must be identical in nature, extent and duration.
  2. Unity of Possession: each joint tenant must have an undivided share of the property at the same time as the other joint tenants and no joint tenant is entitled to any part of it to the exclusion of the other co-owners.
  3. Unity of Title: the interests of the co-owners must be created by the same act or instrument, such as a transfer of land or a will.
  4. Unity of Time: the interests of all joint tenants must be created at the same time and for the same period.

Any act that destroys one of the four unities will bring the joint tenancy to an end. For instance, if one joint tenant acquires a greater interest than his fellow joint tenants, the “unity of interest” will be destroyed, and if one joint tenant transfers his or her interest in the property to a third party, the “unity of title” will be broken and joint tenancy will be severed

In the absence of any of the four unities or in the absence of an intention to create a joint tenancy, the law presumes co-owners to hold property as tenants in common, not joint tenants. This common law presumption in favour of tenancies in common is codified by section 11(2) of the Property Law Act, RSBC 1996, c. 377 (“Property Law Act”), which provides that when land is transferred or devised in fee simple, charged, or contracted to be sold by a valid agreement for sale to two or more persons, they are tenants in common unless a contrary intention appears in the instrument. Therefore, if a joint tenancy is intended on the gift or sale of property or otherwise, the instrument must state or clearly imply such an intention.

Legal v. Beneficial Title, The Difference

Legal v. Beneficial Title, The Difference

The legal principles of the registered owner of legal title versus the beneficial title of the property is poorly understood .

It is very simple, especially given how common it appears to be that  property truly or beneficially owned by one party , but registered at the land title office  in the legal name of the other. The land title act deems the registered owner of the property to be the legal owner, but the word ” legal ” is misleading.

The leading case of Pecore v Pecore 2007 SCC 17 stated inter alia about the difference between the two:

4. It is not disputed that the daughter took legal ownership of the belts in the accounts through the right of survivorship. Equity, however, recognizes the distinction between legal and beneficial ownership. The beneficial owner of property has been described as the real owner of property, even though it is in someone else’s name Csak v. Auman ( 1990) 69 DLR (4th) 567 ( Ont. HC) at p 570.

Adverse Possession

Adverse Possession

Mowaqtt v BC Attorney general 2016 BCCA 113 dealt with a long established principle of  adverse possession  relating to  squatters long time  use of  property that had escheated to the crown .  A claim of squatters to  legal entitlement to a parcel of property  occasionally occurs in estate disputes  in this blog from the BC Court of Appeal  explains this long-established  legal principle .

The appeal was  from an order dismissing the appellant’s claim, based on the doctrine of adverse possession, for recognition of title to land long possessed by them and others.

The claim derived from occupancy of land on Kootenay Lake by squatters no later than 1909.

The absolute legal title to this land escheated to the Crown by dissolution of the corporate titleholder in 1930.

The trial  judge found that the appellants had not proved continuous possession of the land for the years 1916 to 1920. This gap, he said, broke the continuity required for a successful claim.

The BC Court of Appeal  allowed the appeal :

The claim depended upon limitations provisions that derive from 1833 English limitations legislation, received into British Columbia law November 19, 1858, contemporaneously with proclamation of the Colony of British Columbia. The claim depended on a web of circumstantial evidence that should be tested on the basis of “its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions”.

The issues are resolved as follows:

1) The appellants did not lack standing to bring the claim. Whatever claim prior possessors of the land had was passed to the appellants.

2) It was not necessary for the appellants to establish that the squatters’ use of the property was inconsistent with the use of the land intended by the owner of the absolute title. The requirement to prove inconsistent use does not apply in British Columbia.

3) Evidence not considered, or not fully considered in the context of other evidence, demonstrated that the gap in likely possession was shorter than found by the judge. Applying an approach consistent with the Land Title Inquiry Act and the nature of proof available, and considering the shortened gap, the nature of the property and the circumstances known of persons associated with the property, it is more likely than not that the adverse possession of the land by squatters had the degree of continuity between 1916 and 1920 required for the claim. As years subsequent to 1923 were not addressed by the judge, the petition is remitted to the Supreme Court of British Columbia for final determination.

The Doctrine of  Adverse Possession

[5] Adverse possession is an ancient doctrine rooted in the common law’s recognition of a possessory estate in fee simple and attenuated by the application of statutes of limitation. Recognition of an estate based on possession creates conflict between the rights of the possessor (sometimes called the squatter) and the superior right of the true or “paper” owner who has a right to evict the person in possession.

[6] Since 1833 in England, by the Real Property Limitation Act, 1833 (3 & 4 Will 4, c. 27), received in British Columbia on November 19, 1858 through what is now s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253, the doctrine of adverse possession has required the true owner to sue to recover possession of land within a limitation period. Once the applicable limitation period has expired, the true owner’s cause of action in trespass and ejectment may be barred or extinguished, in consequence of which the true owner’s title may be extinguished and a person in possession will be entitled to have that title recognized. As L. Smith J. observed in Re: Land Title Inquiry Act and Canadian Pacific Railway Company, 2002 BCSC 1041:

[47] … where a party has had the intention to possess property and has in fact possessed it for the period of time stipulated in the limitation statute, effectively excluding the true owner, the true owner will be barred from bringing an action to recover the land. …

[7] As a true owner’s title is ultimately defeated by failing to pursue his cause of action against a squatter within the limitation period, the doctrine of adverse possession recognizes that the true owner must be in a position to assert his or her rights against someone. Accordingly, various preconditions and limitations to a claim to adverse possession have developed. In Principles of Property Law, 6th ed. (Toronto: Carswell, 2014), Bruce Ziff explains the necessary elements for adverse possession at 142:

… To succeed, the acts of possession must be open and notorious, adverse, exclusive, peaceful (not by force), actual (generally), and continuous. If any one of these elements is missing, at any stage during the statutory period, no rights against the paper owner can be successfully asserted. …

In general, … the adverse use must be such as to put the paper owner on notice that a cause of action has arisen. After all, the doctrine is based on the failure to bring suit within the limitation period, and therefore time should not run unless it is fair to hold a delay against the owner. Hence, the occupation must be open and notorious, and not clandestine. The adverse possessor must send out a clarion call to the owner, who, if listening, should realize that something is awry. Usually this means that the squatter must use the land in the way that an owner might.

[8] The doctrine of adverse possession does not require that the adverse possessor be the same person, provided adverse possession is continuous. Possession by different squatters can be “tacked” on one after the other, provided there is always someone for the true owner to sue. Anger & Honsberger, Law of Real Property, loose-leaf (consolidated December 2015), 3rd ed. by Anne W. La Forest (Toronto: Canada Law Book, 2006) at §28:50 states:

Once adverse possession has commenced, thus causing a right of action to accrue in some person with a superior right to possession, the time will continue to run against that person so long as there is continually some person in adverse possession who may be sued. Thus, either successors by transfer or by devolution to the title of the original adverse possessor, or a subsequent adverse possessor who is acting independently to dispossess the original adverse possessor or those claiming under them, may add together, or tack, all the prior periods of time together to extinguish the superior claim. However, if the original adverse possessor or those claiming title under them should abandon possession before the superior right of possession is extinguished, and there should be a gap before a subsequent adverse possessor acquires possession, no tacking is possible. During the period when no one was in adverse possession, the person with the superior right to possession would have no person to sue. Accordingly, time ceases to run against that person and, when the subsequent adverse possession occurs, time starts running an

Joint Tenancy Severed By Trust

Joint Tenancy Severed By Trust

A  joint tenancy of co owned property was severed by the signing of a trust agreement by one of the co owners held the BC Court of Appeal in  Public Guardian BC v Mee 1972 WWR 424 .

The respondent was the joint tenant with her former husband of real property.

Following divorce proceedings the husband executed a declaration of trust which was not registered at the Land Registry Office but was left with a solicitor.

By the document he constituted himself a trustee of his undivided one-half interest in the property for his infant son “until the sale or other disposition, or until the said William Donald Mee attains the full age of twenty-one (21) years, in trust for the said William Donald Mee to permit the said lands and premises to be used as a residence for himself, his mother and sisters.”

Further provision was made that if the property were sold one-half of the proceeds of sale were to be held in trust for the son, to be used for his education, and given to him on his becoming 21. The husband died some 5 years later and the wife made an application, which was successful, for a declaration that the property vested in her by right of survivorship.

The Public Trustee, on behalf of the infant appealed and the appeal was allowed.

The execution of the trust agreement was not consistent with unity of title and the joint tenancy was therefore severed and became a tenancy in common..


A declaration of trust had the same binding effect as a transfer to a trustee and could as effectively sever a joint tenancy as a transfer made to a trustee; the trust created by the father in the case at bar was completely constituted and was binding on his heirs, executors, administrators and assigns.

It followed that a severance of the joint tenancy was effected: Milroy v. Lord (1862), 4 De G.F. & J. 264, 45 E.R. 1185; Stonehouse v. Attorney General of British Columbia, 33 W.W.R. 625, 26 D.L.R. (2d) 391, affirmed [1962] S.C.R. 103, 37 W.W.R. 62, 31 D.L.R. (2d) 118 applied.

6       There is no doubt, and it was conceded by the respondent in the Court below as well as in this Court, that a vaid declaration of trust (although not registered in the appropriate Land Registry Office) could effectively sever a joint tenancy to the same extent as a transfer made to a trustee would do. The principle that a declaration of trust has the same binding effect as a transfer to a trustee has been long the law and is set out in the oft-cited case of Milroy v. Lord (1862), 4 De G.F. & J. 264, 45 E.R. 1185, wherein Turner L.J. at p. 1189 said:

… in order to render a voluntary settlement valid and effectual, the settlor must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him. He may of course do this by actually transferring the property to the persons for whom he intends to provide, and the provision will then be effectual, and it will be equally effectual if he transfers the property to a trustee for the purposes of the settlement, or declares that he himself holds it in trust for those purposes … but, in order to render the settlement binding, one or other of these modes must, as I understand the law of this Court, be resorted to, for there is no equity in this Court to perfect an imperfect gift.

Joint Tenancy Not Severed

Joint Tenancy Not Severed

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.

The Law

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), [1999] 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.

Watch Out For Phony Joint Tenancies

Watch Out For Phony Joint Tenancies

One of the problems with joint tenancy ownership is that while the registered title might reflect joint ownership, the true beneficial owner might be one of the registered owners are in fact another unregistered owner in trust– as such, watch out for phony joint tenancies.

For many years estate planners have advised their clients to transfer their assets into joint tenancy ownership with loved ones so they may inherit by right of survivorship and avoid paying legal and probate fees.

The rationale has been that the surviving joint owner, by right of survivorship automatically becomes sole owner of the entire property including the deceased’s share. Thus the asset does not fall into the deceased’s estate but instead passes to the surviving joint owner. As a result, legal costs and probate fees are avoided.

The thinking has been: No muss, no fuss and, what is more, no delays!

Better yet- no lawyers. (Wrong)

Indeed for many years, joint tenancy arrangements have been used by families and very close friends. Most often they are used for home ownership or for financial assets such as bank accounts and investment accounts. Indeed, other than a will, this type of arrangement is probably the commonest form of estate planning.

It is very important to understand, however, that such ownership can lead to hotly contested legal disputes. This is particularly the case where only one of the joint owners has contributed most or all of the funds to the investment account or to the purchase of the property.

Fortunately such disputes rarely arise in cases where both of the joint owners have made substantial contributions to the acquisition of the assets –for example in the case of joint ownership by spouses who have been long married.

A relatively common fact pattern, however, involves an elderly parent, let us suppose a mother, who transfers her home into joint tenancy with only one of her children. She may well think that she is being prudent in avoiding the payment of probate fees upon her death and believe that the one “favoured” child will do the right thing and share the home with the other siblings.

By the time this mother dies, however, the favoured child has convinced himself or herself that the other siblings have no claim to the home because mother intended to leave it for him or her alone- after all, “mom always loved him best”.

The legal remedy is called Resulting Trusts and there are several blogs about iit on this website.

Severance of Joint Tenancy By Conduct


The Tessier v Tessier 2001 SKQB 399 reminds one that even the simple fact of parties signing an agreement to sell the jointly owned property and pay the proceeds into separate accounts can by their conduct sever the joint tenancy into a tenancy in common.


The deceased and husband were joint tenants of a farm property on which they resided until retirement. In 1996 they decided to sell the property to the husband’s nephew and his wife and an agreement for sale was executed in the presence of parties’ lawyer .

The  Agreement set out a schedule of payments which were to be made equally to deceased and husband, who maintained separate bank accounts.

The  Deceased died in 1999 and by her will left residue of estate to be divided among her siblings in equal shares , and the Will made no specific reference to the land.


The Executors of the estate brought proceedings contending that the sale had severed the joint tenancy so that one-half balance owing under agreement for sale was an asset of estate.


The Court held  Joint tenancy had been severed.

Two distinguishing features of joint tenancy are the   right of survivorship and the four unities of title, interest, possession and time.

The  Onus of establishing that a joint tenancy has been severed is on person so contending.

A Sale or lease by all of joint owners does not itself result in severance because this arrangement is compatible with continuation of joint ownership in relation to proceeds of sale .

However,  the deceased and husband had agreed that one-half of purchase price would be paid to each of them and the proceeds were maintained by them in separate bank accounts .

These facts were sufficient indicia of destruction of unities of interest and possession, both by agreement and course of conduct.