Does a Will Override Joint Tenancy on a House in Ontario?

A parent dies. Their will leaves the family house to one child, but the title to the house shows the parent and another child as joint owners. Now the family is asking which document wins: the will or the way the property was registered.

In Ontario, the answer usually turns on how the property was owned, not on what the will says. This article explains the general rule, the ways a joint tenancy can end before death, and what typically happens at the land registry afterwards. It is general information, not advice on your particular house.

The short answer: survivorship usually wins

If you own property as a joint tenant in Ontario, it automatically passes to the surviving owner when you die. That is called the right of survivorship. The Court of Appeal for Ontario has said that a will cannot by itself sever a joint tenancy, and that survivorship takes precedence over a will.

The reason is that the property never becomes part of what the will controls. The right of survivorship applies only to interests held in a joint tenancy, and property that does not pass by survivorship goes to the deceased's personal representative instead. The Province also lists jointly owned property as an example of an asset that is distributed depending on how it is owned.

So in the situation above, if the house really was held in a joint tenancy at the moment of death and nothing had ended that tenancy, the surviving joint owner would generally take the house, whatever the will says.

Joint tenants and tenants in common are different

Many families use the word "joint" loosely. The legal form of ownership matters a great deal. The Court of Appeal has described survivorship as the critical distinction between a joint tenancy and a tenancy in common.

The first thing to find out, then, is how title is actually registered. A recent copy of the title or the registered transfer will usually show it. Do not rely on memory or family assumptions.

Can a joint tenancy be ended before death?

Yes. Ending a joint tenancy is called severance. Ontario's Court of Appeal recognizes three ways: one owner acting unilaterally on their own share, such as selling or encumbering it; a mutual agreement between the co-owners; or a course of dealing showing that all the owners mutually treated their interests as severed.

There are limits to each of these:

• A secret intention is not enough. An intention declared only behind the backs of the other co-owners will not suffice, and a declared intention that was not communicated to a co-owner is not on its own enough to show mutual intent to sever.
• A will can only play a small role. The testator's intention is relevant only as evidence of a course of dealing, and only if it is consistent with other evidence that the owners treated the property as severed.
• The court has said it is not clear that a mere expression of intention is sufficient to achieve severance.
• With three joint tenants, a conveyance by one severs only that tenant's interest, not the whole joint tenancy.

For land, Ontario's registration guidance says a joint tenant can sever by executing and registering a deed or transfer to themselves, after which the registrar shows that person as a tenant in common with the other registered owners. Ontario says no land transfer tax is payable on that kind of transfer to oneself, as long as the affidavit says the deed is registered solely to give effect to the severance.

Mortgages and other complications

Registering a charge (mortgage) by fewer than all of the joint tenants does not automatically sever the joint tenancy. Whether the owner intended to sever is a question of fact for the courts, although severance does occur if the chargee enforces by power of sale or foreclosure.

If a joint tenant who charged their interest alone dies first, the survivors are entered on title subject to the charge on a survivorship application, and the charge is not removed unless a cessation is registered or a court orders its discharge.

Spouses are a special case. Under s. 26(1) of the Family Law Act, if a spouse dies owning a family residence as a joint tenant with a third party who is not their spouse, the joint tenancy is deemed severed immediately before death, according to the land registry bulletin. In that situation the deceased's share may not pass by survivorship at all. Because details like this are easy to get wrong, have a lawyer review the facts.

What happens at the land registry after death

The surviving joint owner normally deals with title through a survivorship application. In Land Titles, the application under s. 123 of the Land Titles Act uses a statement that the applicant held the property as joint tenant with the deceased, that the applicant is entitled as surviving joint tenant, and the date of death.

For deaths on or after March 1, 1986, the application must also include a Family Law Act statement: that the deceased and the survivor were spouses, that the deceased was not a spouse at death, or that the property was not a matrimonial home. A solicitor must sign these statements. Form details have changed recently, so confirm the current requirements before relying on any older guide.

Probate is not always required. Ontario says it is normally required where the deceased owned real property, but real property that does not pass by right of survivorship is a reason to apply. Estate Administration Tax also leaves out assets held in joint ownership that automatically become the other owner's.

What to do next

• Get a current copy of the title to the house and confirm whether it shows joint tenants or tenants in common.
• Look for any transfers, mortgages or charges registered by only one owner.
• Find out whether the deceased was married and whether the house was a family residence.
• Gather the will, any agreements between the owners and anything showing how they treated the property.
• Speak with an Ontario estates lawyer before anyone signs a transfer, sells the house or applies for probate.

If the family disagrees, avoid acting on your own view of what the deceased wanted. Whether a joint tenancy was severed can turn on a unilateral act, an agreement or how the owners dealt with each other, so keep your records and let a lawyer assess your position.

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