Under the Succession Law Reform Act, R.S.O. 1990, c. S.26, if people own joint property and die at the same time or in circumstances making it impossible to know who died first, the joint tenancy is deemed to be severed. The property is treated as though it was owned by the joint tenants as tenants in common instead.

How might that affect your Estate?

Depending on your personal circumstances, it can change your estate plan to something different than what you had intended. For example, if you owned your house jointly and expected it to go to the survivor of you when you died and so you never made a will, your share of the house will now go to your heirs and the other joint tenant’s share will go to his or her heirs. To make this easier to follow, I will provide an example:

Cindy has three young children, all under 6 years old. She moves in with David to his house in Greely, Ontario. David has no children. David’s parents are still alive and so are Cindy’s. Cindy and David live together for 10 years. They parent Cindy’s children together and think of them as their own children. David’s parents don’t really like Cindy or her children, who they never really see much of because they live far away. Cindy and David in year 3 of living together decide to put David’s house into their names as joint tenants so that if David dies, Cindy will get the house and if Cindy dies, David will get the house and the kids will be looked after by whoever survives. Cindy and David never marry. Cindy and David die in a tragic boating accident in year 10. The joint tenancy is severed by virtue of section 55(2) of the SLRA and pursuant to the Intestacy provisions of the SLRA, Cindy’s children would inherit her half of the house and David’s parents would inherit his.

Remember, even if you own all of your property in joint tenancy, it is helpful to have a will. In addition to the property probably not being distributed the way Cindy and David might have wanted, Cindy’s oldest child is under 18, has no parents and two younger siblings to look after. There is no obvious estate trustee to help with the property or guardian to look after the children. Having a will to deal with this makes all of the work of administering an estate easier and will give you peace of mind. It would certainly have been helpful for this family. It may also be necessary to have one to ensure that your wishes are respected.

This article is intended to provide general information only and relates to Ontario Law. For advice specific to your own individual circumstances and how these rules can affect you and your own estate plan, you should consult a lawyer with experience in the area of Estates and Estate Planning.