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An Irrevocable Right of Survivorship?

The joint tenancy is a very convenient device to transfer property and is therefore useful in estate planning. Its most important incident, the right of survivorship (the ius accrescendi) allows you to have property pass automatically to another joint tenant, such as your spouse, or one or more of your children, when you die. You can do it by transfer in the case of real property, or by signing the appropriate bank forms in the case of a bank account. And you can do all that without making a will. And so it will not form part of your probate estate. That makes it attractive to many people, because it allows you to avoid having to pay the dreaded estate administration tax. So what’s not to love?

In fact, use of the joint tenancy device often causes problems and can be productive of litigation down the road if it is not done with care. One of the main problems is whether the transferor, who placed the title to the property into joint tenancy, actually intended to make a gift to the transferee, or merely transferred the property into joint tenancy as a matter of convenience, so that, perhaps the transferee can manage the property, or the bank account, for the benefit of the transferor. Pecore[1] confirmed that when you transfer your property into the joint names of yourself and another person, or create a joint account with your money in the names of yourself and another person, the transaction takes effect immediately and gives the transferee legal title to the property. But whether the transferee becomes entitled beneficially to the property immediately or only on the death of the transferor, or not at all, depends entirely on the presumption of resulting trust (if the transferee is an adult child of or is otherwise unrelated to the transferor) and on the transferor’s intention. If the transferor intended a gift to the transferee and that can be proved, that will rebut the presumption of resulting trust. In that case, as Pecore and other cases hold, the beneficial interest vests immediately and is not testamentary in nature.

There have been many cases after Pecore in which disappointed heirs argue that the transferee took the title in trust for all the heirs. Such actions can easily be avoided if the transferor keeps a written record of her intention and lawyers should advise transferors to do so. I suspect that the tax savings gained from using a joint tenancy are often swallowed up by the legal costs of such litigation – not at all what the transferor had in mind.

But there are also other issues with the device. In particular, it is uncertain whether the transferee will ever receive the property or the money. He won’t if the property is dissipated or the transferor withdraws all the money from the account. But also, the transferee may not survive the transferor. If he doesn’t, his interest is extinguished on his death. Professor Ziff rightly describes joint tenants as “being engaged in  a tontine pact”.[2] As each joint tenant dies, her interest ends and the interests of the other joint tenants are augmented. Only the last survivor will take all.

And then there is the problem of severance of a joint tenancy. A joint tenant is entitled unilaterally to terminate a joint tenancy and turn it into a tenancy in common.[3] Doing so will destroy the right of survivorship, since tenancies in common do not carry that right. Thus the right of a tenant in common can be left to others by will or pass on an intestacy. A joint tenant can destroy the right of survivorship by destroying one of the four unities that are an integral part of joint tenancies: the unities of interest, title, time, and possession. Thus, if a joint tenant transfers his interest to a third party, the unities of title and time are gone and the remaining tenant now owns the property as tenant in common with the third party.[4] Not only that, but a joint tenant can transfer her interest to herself, at least if a statute permits such a transfer.[5]

A number of these issues were raised in Pohl v. Midtal,[6] with surprising results. I shall use the parties’ first names, as the court did, to describe what took place. The defendant, Vivian, had five children by her first marriage. When her husband died, she married the defendant, Gordon. Gordon was a farmer and he transferred title to his six quarter sections of land to himself and Vivian as joint tenants. The plaintiff, Melva, was Vivian’s eldest child. She and her husband were close to Vivian and Gordon and farmed a short distance away. Vivian and Gordon sold three quarter sections to Melva and her husband and their son and his wife. In 2004 they added Melva as joint tenant on the title to the home quarter. Gordon became Vivian’s attorney when her mental faculties deteriorated in 2007. Vivian and Gordon’s wills left their estates to Vivian’s children other than Melva and a son who had received another quarter section from them. The parties had intended that Melva and her husband would move into the house on the home quarter once Vivian and Gordon vacated it. In 2010 Vivian moved into long-term care and the relationship between Gordon and Melva and her husband began to deteriorate.

In 2012 Gordon, acting for himself and as Vivian’s attorney, sued Melva, claiming that she held her interest as joint tenant of the home quarter under a resulting trust. In 2014 Moreau J, as he then was,[7] dismissed the action, holding that Melva had proved that the transfer to her was an irrevocable inter vivos gift and the right of survivorship vested when the gift was made, thereby rebutting the presumption of resulting trust.[8]

But Gordon was not satisfied. In 2015, acting on his own behalf and as Vivian’s attorney, he registered a transfer to sever the joint tenancy.[9] The title then showed Gordon and Vivian as the owners of an undivided two-thirds interest in the land as joint tenants and Melva as the owner of an undivided one-third interest in the land as tenant in common with Gordon and Melva. Meanwhile, Melva had registered a caveat on title and brought this action. Vivian died in 2016 and Gordon in 2017.

Melva argued that the gift to her of a joint interest included an irrevocable right of survivorship. In other words, she maintained that Vivian and Gordon gave up their right to sever the joint tenancy. Khullar J. agreed, stating:[10]

Joint tenants can agree by contract that they will not sever the joint tenancy: see Bruce Ziff, Principles of Property Law;[11] and Haan v. Haan.[12] Therefore, one should be able to relinquish his or her right to sever a joint tenancy by irrevocably gifting the right of survivorship to another. I think this conclusion is the logical implication that flows from Pecore. Whether such a gift was made will depend on the transferor’s intention at the time the gift was made.

The court then discussed other cases that have considered the issue. In Simcoff v. Simcoff[13] the Manitoba Court of Appeal made the following obiter comments about the making of an irrevocable right of survivorship.

Certainly, where an individual, such as this mother, is found to have made a gift of a one-half joint interest in property to her son, she cannot retract that gift at a later point in time. However, the right of survivorship is an incident of joint tenancy that takes effect only if the joint tenancy continues to exist as of the death of one of the joint tenants. The gift of one-half of the property cannot be rescinded, but the joint tenancy can be converted into a tenancy in common, which does not carry with it the right of survivorship.[14]

In Bergen v. Bergen[15] and McKendry v. McKendry[16] the British Columbia Court of Appeal followed this reasoning, holding that when a parent gives an adult child a joint interest in property she does not thereby give up her right to sever the joint tenancy.

However, the Saskatchewan Court of Appeal disagreed in Thorsteinson Estate v. Olson,[17] in which the court said, relying on Pecore,[18] that when a person has made a valid gift of [an interest in joint tenancy and] the right of survivorship, she cannot take it back by severing the joint tenancy.

Having considered the various cases, Khullar J. stated:

50       I decline to follow the analysis in Simcoff. First, as noted in Thorsteinson,[19] it was clearly obiter and, therefore, less weighty. Second, while not articulated this way in Thorsteinson, based on the reasoning in Pecore, it seems logical to conclude that, by gifting a joint interest in property to his or her adult child, a parent can give up his or her right to sever the joint tenancy. If the facts of Pecore are used, the finding is that the father intended the daughter to be the beneficial owner of the joint accounts when he died, but he would be the beneficial owner while he was alive. In order to give effect to that intention, the implication is that the father will not or cannot exercise the right of severance while he is alive, though he can use all of the assets in the accounts to his own benefit. By analogy, in the case at bar, Gordon and Vivian could use the Home Quarter in any way to their own benefit while joint tenants with Melva. But, in order to give effect to their gift of survivorship to Melva, when they created the joint tenancy, they gave up their right to severance. To find otherwise would defeat the point of a gift of property that will only take effect upon the death of the transferor. To the extent this is seen as a stretch of the law of joint tenancy, the first step of that stretch was taken in Pecore.

Khullar J. also referred to Wong v. Chong Estate,[20] noting that the court in that case recognized that a joint tenant “did not have the ability to sever the joint tenancy based on the intention of the transferor when the joint tenancy was created”. The plaintiff argued that the parties had entered into an oral agreement that the transferee could not sever the joint tenancy and the court opined that such an agreement, which is otherwise required to be in writing under the Law and Equity Act,[21] might be valid in the circumstances of that case. However, it went on to hold that the plaintiff failed to prove the existence of such an agreement. But it also held that the evidence established that the transferee held her interest in trust for the plaintiff. Consequently, the case was not helpful to the decision in Pohl.

Khullar J. concluded as follows:

64       Gordon and Vivian clearly intended that Melva would get the Home Quarter on their deaths. To give effect to their intention, an inference can and should be drawn that they gave up their right of severance in 2004, when they made Melva a joint tenant.

With the greatest respect, this conclusion conflicts with the established law of joint tenancy, which has never held that it is an incidence of the title that the parties can prevent a severance. Rather, the right to sever a joint tenancy is an inherent right of the tenancy. Moreover, in my opinion, the conclusion of Khullar J. does not flow by implication from Pecore. That leading case did not change the law of joint tenancy, but only declared that a transferee may acquire certain beneficial rights when added as a joint tenant to property and that those rights depend on whether the transferor intended the transferee to have the beneficial interest while both parties are living, only when the transferor dies, or not at all. The transferor’s intention can be proved by the evidence or determined by the application of the presumption of resulting trust. The case did not address the question whether a transferor can make the right of survivorship absolute by renouncing his right of severance.

In my opinion, Khullar J. failed to give sufficient weight to the comments of the Manitoba Court of Appeal in Simcoff, dismissing them as dicta. Further, Khullar J. also dismissed Bergen and McKendry in a couple of lines. In fact, in Bergen the BC Court of Appeal rejected the argument that Pecore stands for the proposition that the complete and perfect inter vivos gift to the transferee means that the transferee owns the interest transferred to him (a one-third interest in Bergen) and that it cannot be taken away from him.

This does not mean that the result in Pohl is wrong, but it can only be justified on other grounds.

One of those grounds is an agreement between the parties that the transferee cannot sever the joint tenancy. The parties can certainly enter into such an agreement and it will be enforced if proved, provided that, in the case of land, the agreement is evidenced by writing,[22] or if there are statutory or equitable exceptions to that requirement, such as part performance.[23] Alternatively, an oral agreement with respect to land will be enforced in equity if the defendant fraudulently denies its existence. Equity then allows the plaintiff to adduce evidence proving the fraud[24] and when it is proved Equity enforces the agreement by raising a constructive trust that requires the defendant to hold the property for the benefit of the plaintiff.[25]

The matter can also be analyzed under the rubric of the law of mutual wills. The doctrine of mutual wills does not apply only to wills, but to any agreement in which parties agree to dispose of property in a particular way. Thus, it also applies to a joint tenancy that the parties have agreed not to sever. The mutual wills doctrine operates to enforce the agreement by a constructive trust.[26]

Regardless, the agreement, if proved, is not an incident of the law of joint tenancy. Rather, it is external to the particular joint tenancy in respect of which it was made and modifies only that joint tenancy.

Had Khullar J. analyzed the case along these lines, in my opinion the result would have been defensible. As it stands, with respect, it has muddied the waters of the law of joint tenancy.

The issue was not raised in the case, but quaere whether Gordon breached his fiduciary duty to Vivian when he severed the joint tenancy.


[1]Pecore v. Pecore, 2007 SCC 17.

[2] Bruce Ziff, Principles of Property Law, 6th ed. (Toronto: Thomson Reuters/Carswell, 2014), pp. 338-39.

[3]However, consent by all the joint tenants, or a court order is required to perfect the severance in Saskatchewan: Land Titles Act, S.S. 2000, c. L-5.1, s. 156.

[4] A joint tenancy can also be destroyed in part. This will happen if there are more than two joint tenants, e.g., A, B, and C. If  A transfers his interest to D. B and C will continue to hold their interests as joint tenants, but they will hold their two-thirds interest as tenants in common with D.

[5] See, e.g., Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, s. 41, which permits such a transfer.

[6] 2017 ABQB 711.

[7] Now Moreau C.J.Q.B.

[8] Midtdal v. Pohl, 2014 ABQB 646, para. 118. The difference in spelling in the name of the parents is not  explained in the two cases.

[9] For this purpose he followed the provisions of the Law of Property Act, R.S.A. 2000, c. L-7, s. 12 and the Land Titles Act, R.S.A. 2000, c. L-4, s. 65.

[10] Supra, footnote 6, para. 42.

[11] Supra, footnote 2, pp. 350-51.

[12]2015 ABCA 395.

[13] 2009 MBCA 80, para. 63

[14] Ibid., para. 63

[15]2013 BCCA 492.

[16] 2017 BCCA 48.

[17] 2016 SKCA 134, para. 67.

[18] Supra, footnote 1, para. 50.

[19] Supra, footnote 17, para. 66.

[20] 2016 BCSC 953.

[21] R.S.B.C. 1996, c. 253, s. 59

[22] Statute of Frauds, 29 Car. II, c. 3, ss. 4 and 7, and comparable provincial legislation, such as the Statute of Frauds, R.S.O. 1990, c. S.19, ss. 4 and 9; and the Law and Equity Act, s. 59, supra, footnote XX.

[23] Wong v. Chong Estate, supra, footnote 20; Haan v. Haan, supra, footnote 12.

[24] The fraud is not common law fraud, but equitable fraud.

[25] See Oosterhoff on Trusts: Text, Commentary and Materials, 8th ed. by A.H. Oosterhoff, Robert Chambers, and Mitchell McInnes (Toronto: Thomson Reuters/Carswell, 2014), §12.3.2. Exceptionally, the court can also raise a resulting trust if the plaintiff is both settlor and beneficiary of an unenforceable express trust, since the resulting trust will then cause the property to result to settlor. A constructive trust is necessary if the intention is that the property go forward to another person.

[26] See Albert H. Oosterhoff, “Mutual Wills” (2008), 27 E.T.P.J. 135 at 138. And see McGeachy v. Russ, [1955] 3 D.L.R. 349, 15 W.W.R. 178 (B.C.S.C.), where the agreement also obliged the survivor to transfer the property later to a third party, either inter vivos, or by will.

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