Joint Tenancy in Estate Matters

By Mikkel Arnston, Associate & Emma Banfield, Student-at-Law

A recent case from the Ontario Superior Court of Justice severed a joint tenancy after a testator died. This may represent a change in the way property law has generally approached a person’s right to deal with an interest in jointly-held property after death.

While this is not an Alberta decision, it may effect on how Alberta courts view joint tenancy after death.

What is joint tenancy?
Joint tenancy means two or more people own a property together. When one of them dies, their share passes to the other owner(s). By contrast, tenants-in-common each have an individual interest in the property, which means that if they die, their part of the property goes to whoever they designate in their will, or if they die without a will, to their estate.

The facts in this case
In the Ontario case, Mr. Salga and his wife owned a home together. It was undisputed that they had purchased the property as joint tenants. When Mr. Salga died in August 2015, he left behind a will made about a month before he died, in which he gave his wife his half of the house for as long as she survived him, after which it was to be added to the residue of his estate, which went to his daughters from a previous marriage.

After he died in August 2015, his wife argued that they owned the home jointly and so it now belonged solely to her. His daughters argued that Mr. Salga and his wife had intended to turn their ownership into a tenancy-in-common before he died, and therefore his interest in the home should go to them.

The Court decision
The Court considered evidence including a recording made by one of the daughters of a conversation between Mr. Salga and his wife when he was on his deathbed. In the recording the wife acknowledged that Mr. Salga’s half would go first to her and then to his daughters after she died. The Court also relied on language in the will which appeared to show that the testator thought that the tenancy was in common rather than joint. Finally, the Court heard from friends of the deceased who said that the husband and wife had agreed together that the property would be split, but some of the testimony was self-serving, and the Court did not give most of it much weight.

The Court therefore found that the property was to go to the wife for her lifetime, and then Mr. Salga’s portion would to the daughters.

What does this mean if you are making a will in Alberta?
When couples buy property in Alberta, they should be clear about whether they are tenants-in-common or joint tenants. When considering a will where the testator purports to own property in common rather than jointly, a court may consider additional evidence to determine whether the two owners intended to split their interests prior to the death of one of them. This may impact the estate planning of both owners. It is advisable to have a discussion with your lawyer about the advantages and disadvantages of joint tenancy and what it means for your estate planning.

This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.