Joint Tenancy and Intention to Sever

The Wills and Succession Act, s. 26 states:

26 A will must be interpreted in a manner that gives effect to the intent of the testator, and in determining the testator's intent the Court may admit the following evidence:

• evidence as to the meaning , in either an ordinary or a specialized sense, of the words or phrases used in the will,
• evidence as to the meaning of the provisions of the will in the context of the testator's circumstances at the time of the making of the will, and
• evidence of the testator's intent with regard to the matters referred to in the will.

As practitioners in this area, we try to highlight evidence of intention. Sometimes this can be found within the wording of the Will itself or in other evidence found outside the Will. In fact, as lawyers, we often advise clients to be clear in the terms of their Will, what their intentions are with regard to specific assets and/or beneficiaries. Sometimes we even include the reasons why. As lawyers, we also try to paper our files with notes, to provide further evidence outside a Will as to what testators intended if there is ever any confusion or dispute.

Notwithstanding the above, including terms within a Will regarding intentions, may not be sufficient when addressing a joint tenancy, right of survivorship on the death of a joint tenant, and an alleged intention to sever the joint tenancy.

See the recent case of Asquin v Michetti, 2021 ABQB 16 ("Asquin"), where the "Home" of a common law couple was originally purchased by A. After several years, M was added to the title of the Home as a joint tenant.

The relationship broke down and legal proceedings commenced, one of which was an action seeking partition and sale of the Home by A. M opposed that application. A and M continued to share expenses of the Home until M's death.

M's Will provided that M's mother would be the sole residual beneficiary. M' s Will did not specifically mention the Home.

A received sole legal ownership by right of survivorship on M's death. A sought possession and access to the Home. M's family opposed A's application.

Court found that although there was an action seeking severance of joint tenancy, it was not pursued and A and M did not proceed on that basis. In fact, the Court found A and M agreed the Home would remain in joint tenancy and they would continue to share expenses.

Accordingly, A was entitled to remain the sole owner of the Home, was entitled to entry and rent.

The Court also noted that "a will by itself, even if it had mentioned the Home, which it did not, would not have been enough to sever the joint tenancy."

If you have questions or concerns regarding Estates, Interpretation of Wills and potential Estate disputes, please contact Kantor LLP.