Joint Tenancies – New Hope in 2012 for Disappointed Beneficiaries

It is always a question after death whether assets that were held jointly should devolve under the black letter to the survivor or whether there was some intention by the deceased to sever the joint tenancy. In the severance scenario, the asset would be split – with half going to the survivor and half going to the rightful heirs of the deceased. For many years, the joint survivor was the hands-down winner and the Estate heirs were content to just walk away with nothing. Poor legal strategy as it turns out in 2012. As Toronto estate lawyers, we see joint asset dispute as a litigation area on the rise. Estate litigation can erupt when the deceased was either a separating spouse or a diligent estate planner, who then forgot to formally sever title to the joint assets. Think of the family home or cottage as the usual suspect for an asset “held jointly with a right of survivorship”. Think also of any bank accounts designated as “joint accounts”. These can represent highly significant assets of the deceased that end up going completely “outside the Estate” to the survivor. One must understand that to expressly devolve joint assets under a Will is of no legal consequence if the underlying designation does not dovetail. In other words, what matters is the name on title with the Land Registrar of Ontario or the name on the account with the bank. The trend in the case law as recently as earlier this year was clearly against the party seeking to sever the joint assets post-death. The black letter law was applied. The Ontario Superior Court of Justice and, increasingly, the Toronto Estate List had favoured the strict approach by requiring air-tight evidence of a common intention by both parties to sever. As a practical matter, it was almost impossible to generate evidence of intention when one of the parties was dead and the other party’s self-interest lay completely in supporting the joint tenancy. The Ontario Court of Appeal has now opened up a loophole in the black letter law – one might say as wide, if not wider, than the family home door. From now on, the Ontario courts must take heed of the all-but-ignored third test in determining whether joint accounts should be declared severed post-death. What is henceforth required is not proof of a common intention to sever but rather proof that the co-owners knew of each other’s position and they both treated their respective interests as no longer being held jointly. That is a much lower standard. Consider that a family meeting in which one joint owner asserts severance and the other acquiesces may suffice as proof. This is the law of the Ontario Court of Appeal in Hansen Estate v. Hansen, 2012 ONCA 112, which can be said with certainty to now be part of estates law in Ontario. Not well known, but estate law well worth knowing.