FLA Supersedes Joint Tenancy

(Ontario)

Question:

One of the questions in the practice test asks if Jim and Dan are joint tenants of a property, Dan is living overseas and Jim and wife live in the house, then Jim dies who gets the property. I answered Dan through survivorship but the answer says Jim’s wife inherits Dan’s share through the will.

Answer:

It is important to examine the provisions of the Family Law Act dealing with statutory severance of the joint tenancy.

Have a look at s. 26:

Spouse without interest in matrimonial home

Joint tenancy with third person

26 (1) If a spouse dies owning an interest in a matrimonial home as a joint tenant with a third person and not with the other spouse, the joint tenancy shall be deemed to have been severed immediately before the time of death.

In this case, Jim and Dan owned the property. Jim’s wife was not on title. It was their matrimonial home. Jim died, and immediately before the time of death, the joint tenancy was severed meaning that the relationship was tenants-in-common.

So, Jim’s interest in the property would go to his estate, either pursuant to a Will if he had one, or pursuant to the laws of intestate succession, if he did not.

Brian Madigan LL.B., Broker

www.OntarioRealEstateSource.com

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