Does a Will Override Joint Ownership in Ontario?

A parent's will says everything is to be divided equally among the children. Then you learn that one child, or a new partner, was named as a joint owner of the house or a bank account. It is natural to ask whether the will still controls.

The short answer is that a true right of survivorship usually beats the will. But there are several situations where a jointly held asset ends up back in the estate, or is counted for other claims. This article walks through them in plain terms.

The general rule: survivorship passes outside the will

Property passes to an estate trustee only if no one else has a right to take it by survivorship. When a joint tenant dies, their interest goes to the surviving joint tenant or tenants, not to the beneficiaries named in the will. This is true whether or not there is a will.

In practice, that means a house held in true joint tenancy can pass to the surviving owner without a Certificate of Appointment of Estate Trustee. Jointly owned property that passes automatically to the other owner is also left out of the value of the estate for estate administration tax.

When the will still matters in practice

Many families assume that two names on a deed or account means survivorship. That is not always so. The situations below are the main ones where the estate may still have a say.

Tenants in common and the wording of the deed

Land granted to two or more people is held as tenants in common unless the document shows on its face that they take as joint tenants. A tenant in common's share does not pass by survivorship.

The same presumption applies where one co-owner is the other's spouse, and for this rule spouse includes two people living together in a conjugal relationship outside marriage. Spouses and common-law partners therefore hold as joint tenants only if the deed says so. Executors and trustees are an exception to the general presumption, and people who acquire land by length of possession hold as tenants in common.

Added to title or an account for free: resulting trust

For gratuitous transfers, the presumption of resulting trust is the general rule, and the person receiving the transfer must show a gift was intended. An adult child added to a parent's account or property without paying is presumed to hold it in trust for the parent, and on death for the estate. The presumption of advancement, which treats the transfer as a gift, is confined to minor children, although an adult child's financial dependency can be strong evidence against the trust.

Courts may look at the following when deciding what the parent intended:

• The wording of the bank documents.
• Who controlled and used the funds.
• Whether a power of attorney was granted.
• How the account was treated for tax.
• Later evidence, if it sheds light on intent at the time of the transfer.

If the survivor does hold a joint asset in trust for the estate, it does not escape estate administration tax. Heirs may also challenge the survivor, who may need to show the deceased meant the funds as a gift.

Other ways joint property is pulled back in

• Matrimonial home: if a spouse dies owning a matrimonial home as a joint tenant with someone other than the other spouse, such as a child, the joint tenancy is deemed severed immediately before death and the share goes into the estate.
• Simultaneous deaths: unless a contrary intention appears, joint tenants or joint account holders who die at the same time, or where it is uncertain who survived, are deemed tenants in common, and each share passes through that person's own estate.
• Dependant support: for a support claim, joint deposits and property held by the deceased and another as joint tenants are deemed part of the net estate. For joint deposits, only the part that belonged to the deceased is counted, and the claimant must prove that.
• Spouse's equalization: a surviving married spouse who elects equalization has property received by survivorship credited against the entitlement, unless a written instrument says it is in addition. Unmarried partners cannot elect equalization.

Income tax also applies separately. A deceased person is considered to have sold their capital property just before death, even if it passes by survivorship. A rollover is available for a surviving spouse or common-law partner who is resident in Canada, if the property is locked in for them within 36 months of death.

What to do next

• Search the parcel register through OnLand to see whether title is held as joint tenants or tenants in common; ServiceOntario cannot search or explain records for you.
• Gather the bank account documents and ask the institution what it requires, since requirements vary.
• Collect evidence of who paid, who controlled the funds and why the name was added.
• Note the deadlines: an equalization election must be filed within six months of the death, and a dependant support application generally cannot be made more than six months after the certificate of appointment is granted, although the court may allow a late application for any part of the estate still undistributed.
• Do not distribute estate assets until you know whether a claim is coming; once a support application is served, distribution generally must wait for the court.

Whether a joint asset is really the survivor's or the estate's depends on the facts. A lawyer can review the documents with you before anyone acts.

Frequently asked questions