BC Joint Tenancy Right of Survivorship Lawyers handle disputes where parties argue whether a joint tenancy was an outright gift or whether the property was held in trust for the person that created the joint tenancy. Our top BC Joint Tenancy Right of Survivorship Lawyers help people sort out what the intent of the person was at the time of creation of the joint tenancy and this frequently becomes a bone of contention when the person who made the joint tenancy dies and there is a fight over whether the estate or the surviving joint tenant owns the property.
BC Joint Tenancy Right of Survivorship Lawyers handle disputes over land and joint bank and investment accounts. With Vancouver’s booming real estate market these disputes can involve millions of dollars.
Contact our award-winning family and estate litigation lawyers at 1-877-602-9900 or click here for immediate help.
BC Joint Tenancy Right of Survivorship Lawyers And New BC Appeal Decision
Lorne N MacLean, QC founder of our team of senior BC Joint Tenancy Right of Survivorship Lawyers likes the short summary of the law on this issue provided by Madam Justice Dickson on behalf of a unanimous three-person Appeal panel in Mckendry v. Mckendry.
[26] The legal principles that apply are straightforward. A brief summary of those principles and their application on this appeal follows below.
Joint Tenancy and the Right of Survivorship
[27] Joint tenancy is a form of concurrent property ownership. When the “four unities” of title, interest, time and possession are present, co-owners hold an equal interest in property as a unified whole: Zeligs v. Janes, 2016 BCCA 280 at para. 38. However, parties may hold legal title to property as joint tenants while beneficial ownership is held differently. For example, a mother and son may own real property as joint tenants in law while the mother alone owns the beneficial interest. In such circumstances, as Rothstein J. noted in Pecore v. Pecore, 2007 SCC 17 at para. 4:
… The beneficial owner of property has been described as “the real owner of property even though it is in someone else’s name”: [citation omitted] …
[28] The principal characteristic of joint tenancy is the right of survivorship. When a joint tenant dies, his or her interest in property is extinguished. If there is more than one surviving joint tenant, they continue to hold the property as joint tenants. The last surviving joint tenant takes full ownership of the property.
Dealing Freely With Property Until Death
After something goes into joint tenancy how can it be used? Our BC Joint Tenancy Right of Survivorship Lawyers explains that each party can deal freely with their interest until one dies.
[29] So long as the requirements of a binding gift are met, the owner of property may, during his or her lifetime, make an immediate gift of a joint tenancy, including the right of survivorship. This is so regardless of whether the donee of the gift is to hold it for the benefit of the donor while he or she is alive. When gifted inter vivos, the right of survivorship is a form of expectancy regarding the future. It is a right to what is left of the jointly-held interest, if anything, when the donor dies: Simcoff v. Simcoff, 2009 MBCA 80 at para. 64; Bergen v. Bergen, 2013 BCCA 492 at para. 37; Pecore at paras. 45-53.
[30] A donor may gift the right of survivorship, but continue to deal freely with property throughout his or her lifetime. In Simcoff, Steel J.A. explained why:
64 Simply, and conceptually, the fact that a “complete gift” may have been given and that this gift included a right of survivorship does not, prima facie, prevent a donor from dealing with the retained joint interest while alive. The right of survivorship is only to what is left. Accordingly, if one joint owner drains a bank account (in the case of personal property) or severs a joint tenancy (in the case of real property), there is nothing in the right of survivorship itself that somehow prevents this. In commenting on the issue of survivorship in Pecore, Rothstein J. wrote (at para. 50):
Some judges have found that a gift of survivorship cannot be a complete and perfect inter vivos gift because of the ability of the transferor to drain a joint account prior to his or her death: see e.g. Hodgins J.A.’s dissent in Re Reid [(1921), 64 D.L.R. 598 (Ont. C.A.)]. Like the Ontario Court of Appeal in Re Reid, at p. 608, and Edwards v. Bradley, [[1956] O.R. 225] at p. 234, I would reject this view. The nature of a joint account is that the balance will fluctuate over time. The gift in these circumstances is the transferee’s survivorship interest in the account balance – whatever it may be – at the time of the transferor’s death, not to any particular amount.
Our skilled BC Joint Tenancy Right of Survivorship Lawyers are here to help you properly sort through things when a loved one dies. Don’t delay as deadlines apply. Call our joint tenancy estate dispute lawyers toll free across BC or in Calgary at 1-877-602-9900.
