Can You Terminate a “Joint Tenancy” by Executing a Will?

Question:

I read that “A joint tenant cannot bequeath his or her interest by means of a will…”. Does that mean that even if there is a Will of John Smith, due to the right of survivorship, the other joint tenant William Smith will takeover John’s interest, and John’s Will would have no effect?

Answer:

There are numerous ways to terminate a Joint Tenancy. The Tenants in common relationship is the default position.

The difficulty is “notice”.

If A and B are joint tenants, it would be unfair if A could make a Will leaving his interest to X when B still thinks that A and B are stuck together in joint tenancy.

If A wants out, all he needs to do is send a notice to B, saying that the joint tenancy relationship is over. B cannot oppose it. The relationship is indeed over and they become tenants in common. That means that their respective interests in the property pass to their heirs-at-law, either by Will (testate succession) or by the provisions of the Succession Law Reform Act (intestate succession). 

There are many ways of terminating a Joint Tenancy. A would have to take one of those steps. Notice is fine. B needs to know about it. A cannot do this in secret. The Will is a secret document, so it would not constitute notice.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com