In a recent blog post, I discussed common disaster clauses. A question I have been faced with which is related to the topic of common disaster clauses is the question of what happens if property is owned jointly with someone else, the joint owners die at the same time, and it can’t be determined which of the joint tenants died first. The Ontario Succession Law Reform Act (the “SLRA”) addresses this question.
Section 55(1) of the SLRA provides that,
Where two or more persons die at the same time or in circumstances rendering it uncertain which of them survived the other or others, the property of each person, or any property of which he or she is competent to dispose, shall be disposed of as if he or she had survived the other or others.
This section is qualified by section 55(2) of the SLRA which provides,
Unless a contrary intention appears, where two or more persons hold legal or equitable title to property as joint tenants, or with respect to a joint account, with each other, and all of them die at the same time or in circumstances rendering it uncertain which of them survived the other or others, each person shall be deemed, for the purposes of subsection (1), to have held as tenant in common with the other or with each of the others in that property.
To understand these sections, it is important to understand there are different means by which property can be owned; namely, people can hold property as joint tenants or as tenants in common. If property is owned jointly, there is a right of survivorship; this means that on the death of one of the joint tenants the property passes to the surviving owner or owners outside of the Will of the deceased owner (if he or she has executed a valid Will) or avoiding the laws of intestacy (if he or she does not have a valid Will), as the case may be. If, however, someone owns property with one or more people as tenants in common, the portion of a deceased owner would be distributed in accordance with the deceased owner’s Will or, if the deceased owner did not have a valid Will, in accordance with the laws of intestacy.
Joint tenants who have died simultaneously are deemed to have held the property as tenants in common. This means that there is no right of survivorship between the joint tenants. Each tenant’s interest in the property passes according to their respective Wills or by the intestacy scheme in the SLRA if no valid Will exists.
Executing a Will or multiple Wills is a way you can have a say in how your estate will be distributed in this circumstance.
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