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?
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