Can a Joint Owner Who Caused a Death Still Take by Survivorship?

When a home or bank account is jointly owned and one owner dies at the hand of the other, families are often shocked to learn that the ordinary rules of survivorship seem to point toward the person who caused the death. It is natural to ask whether that person can really keep the house, the account or the insurance money.

This article explains, in general terms, how survivorship works in Ontario and what the Court of Appeal for Ontario has said about a killing between joint owners. The answer depends heavily on the facts, including the criminal outcome, so this is a starting point for a conversation with a lawyer and not a prediction.

How survivorship normally works

If you own property as a joint tenant in Ontario, the property automatically passes to the surviving owner when you die. The Court of Appeal has described survivorship as the critical distinction between a joint tenancy and a tenancy in common, where a deceased owner's share instead passes to the estate.

Because survivorship applies only to interests held in a joint tenancy, property that does not pass that way goes to the deceased's personal representative. A will cannot by itself end a joint tenancy, and survivorship takes precedence over a will. That is why a family cannot simply point to the will of the person who died to redirect a jointly held home.

The principle that a person should not profit from a killing

The Court of Appeal for Ontario has noted the general principle that a person who kills another should not profit from the crime, and that there are exceptions, such as mental disorder. In plain words, the law is uncomfortable with letting a wrongdoer benefit from a death they caused.

This article confirms that principle and one exception. It does not set out a full Ontario rulebook for every kind of unlawful killing, such as how a conviction for murder, manslaughter or another offence would affect a joint tenancy. A lawyer can confirm how the principle applies to a particular set of facts.

The mental disorder exception

In one Court of Appeal decision, a person found not criminally responsible on account of mental disorder for killing a spouse was not prevented from taking under insurance or by right of survivorship. The court treated mental disorder as an exception to the general principle.

This does not mean every case turns out the same way. It shows that the criminal finding matters, and that a person found not criminally responsible is treated differently from the general principle.

Why the order and timing of deaths matter

In the same case, timing mattered. The court found a triable issue about whether the wife's estate had an interest in the insurance proceeds, including contents, separate from the house, if she died after the home was destroyed. In other words, the sequence of events can affect what belongs to whom.

If the facts include a fire, a sale, a mortgage or any other event around the time of death, tell your lawyer about all of it. Details that seem minor to a family can decide which rule applies.

What families can do next

Do not rush to move out, sell, cancel insurance or sign anything with the surviving owner while the legal position is unclear. Instead, organize the information a lawyer will need.

• A copy of the deed or the current property record showing how title is held
• Joint bank account agreements and any beneficiary designations on insurance or registered plans
• The deceased's will, if there is one
• Information about the criminal proceedings and their outcome, if any
• Details about the timing of any damage to the property, and any insurance policies
• A list of family members who may have a claim against the estate

If the property does not pass by survivorship, it goes to the deceased's personal representative, and Ontario says an application for probate may be needed when real property does not pass by right of survivorship. A lawyer can tell you which path applies.

Frequently asked questions