Quick answer: In a joint tenancy, the survivor normally takes the whole property by right of survivorship, outside the estate. But in British Columbia that outcome is not guaranteed. A joint tenancy can be severed into a tenancy in common, which defeats survivorship, and where a parent adds an adult child to title for free, Pecore v. Pecore presumes the child holds that survivorship interest in trust for the estate unless a gift was intended and proven.
New case law from the Ontario Court of Appeal has provided that a mere “course of dealings” will allow one party to sever a joint tenancy into a tenancy in common. To learn more, please read below: an excerpt from the WeirFoulds Trusts and Estates newsletter, published by Thomson Reuters Canada Ltd:
Joint Tenancies
Three recent decisions dealing with the severing of joint tenancies have raised new issues in an area that most of us thought we knew quite well.
First-year Property courses taught us the significant difference between a joint tenancy, where each party has an interest in the whole of the property with a right of survivorship, and tenancy in common, where each owner held a specific interest with no right of survivorship. In order to create a joint tenancy, it has been said that “four unities” must be present: the unity of interest; the unity of title; the unity of time; and the unity of possession. It is well established that if any one unity is not present, the joint tenancy is at an end.
In Ontario, breaking the unity of time by one owner conveying the property to themselves has been used in matrimonial cases to terminate the right of survivorship when the relationship breaks down. The decision in Hansen Estate v. Hansen (2011), 2011 CarswellOnt 15607 (Ont. S.C.J.) takes this concept further by severing a joint tenancy based on the conduct of the owners.
Mr. and Mrs. Hansen were married in 1983, each with children from previous marriages. They jointly owned a cottage and a home. Due to medical issues experienced by Mr. Hansen and the involvement of his children, Mrs. Hansen moved to a seniors’ complex. She did leave the home but intended to continue to assist with her husband. Mr. Hansen, however, saw a lawyer and changed his will, leaving his estate to his children. No instructions were given by Mr. Hansen to sever the joint tenancy of their home. Mrs. Hansen also retained a lawyer who advised Mr. Hansen’s solicitor that they had separated. Steps were then taken to value the home and to divide their assets. Before these matters were settled, Mr. Hansen died. Two of Mr. Hansen’s daughters were named as his Estate Trustees and brought an application seeking a declaration that Mr. Hansen’s estate was entitled to an undivided one-half interest in the home. The application judge dismissed this application as the joint tenancy had not been severed.
The Court of Appeal allowed the appeal (Hansen Estate v. Hansen (2012), 9 R.F.L. (7th) 251, 2012 CarswellOnt 2051, 2012 ONCA 112, 75 E.T.R. (3d) 19, 109 O.R. (3d) 241 (Ont. C.A.)). The Court relied on the three rules established in Williams v. Hensman (1861), 70 E. R. 862 for severing joint tenancies which they summarized as follows:
Rule 1: unilaterally acting on one’s own share, such as selling or encumbering it;
Rule 2: a mutual agreement between the co-owners to sever the joint tenancy;
Rule 3: any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.
The applicable rule for this case was Rule 3, the “course of dealing rule”. The Court of Appeal confirmed that what was determinative under this rule is the “expression of the intention by the co-owners as evidenced by their conduct”. Rule 3 will govern where there is no explicit agreement which would trigger Rule 2. Rule 3 requires that the co-owners knew of the other’s position and that all parties treated their interests in the property as no longer jointly held. The Court of Appeal stated that the application judge did not appreciate that the facts, the preparation of a new will, the negotiation of the division of their assets, and the opening of separate bank accounts were sufficient conduct to sever the joint tenancy.
The decision of Su v. Lam (2012), 2012 ONSC 2023, 2012 CarswellOnt 3975 (Ont. S.C.J.), applied Hansen and provided that “the mutual intention of the parties as demonstrated by their conduct, must be assessed” and stated that the intention must be mutual. In this case, the applicant, Mr. Su, was unable to establish that his common-law spouse had, by her conduct, severed the joint tenant in property she held with her husband.
These decisions, together with the decisions of the Supreme Court of Canada in Pecore and Madsen, require estate planners to question their clients carefully about how they hold their property and what they mean by joint tenancy.
How severance works in British Columbia
The Ontario cases above are not just Ontario law in spirit. BC courts apply the same *Williams v. Hensman* framework — the three routes to severance the article describes — so the “course of dealing” idea travels across the country. The BC Court of Appeal has worked through these rules in the estate context, including in *Zeligs Estate v. Janes*, 2016 BCCA 280.
What severance does is simple to state and easy to underestimate. It converts a joint tenancy into a tenancy in common. The moment that happens, the right of survivorship is gone. Instead of the survivor taking the whole property automatically, each owner holds a distinct share that passes under their will or the intestacy rules. A joint tenancy you set up years ago to keep a home out of probate can quietly stop working that way if the co-owners, by agreement or by conduct, start treating their interests as separate.
The practical warning: severance can happen without a signed document announcing it. Separated spouses who value and divide their assets, open separate accounts, and change their wills may sever by their course of dealing, exactly as in the Ontario cases. If survivorship is central to your plan, it should not be left to inference.
The bigger BC trap: joint tenancy with an adult child
Plenty of BC parents put an adult child on title to the family home or a bank account, thinking it is a tidy way to pass things on and skip probate. *Pecore v. Pecore*, 2007 SCC 17, is why that move is riskier than it looks.
When an aging parent gratuitously transfers property into joint tenancy with an adult child, the law does not assume a gift. It presumes a resulting trust: the child is presumed to hold the survivorship interest in trust for the parent’s estate, not for themselves. To keep the property on the parent’s death, the surviving child has to prove the parent actually intended to give them the right of survivorship. Without that proof, the asset falls back into the estate and is shared under the will among all the beneficiaries.
This is where good intentions cause litigation. A parent adds one child “for convenience,” dies, and the other children argue the survivor holds the home in trust for everyone. Whether the transfer was a gift or a convenience turns on the parent’s intention at the time — and the best evidence of that intention is contemporaneous, written, and specific, not reconstructed years later in a courtroom.
What this means for your estate plan
Two takeaways follow. First, if you hold property in joint tenancy on purpose, document why, and revisit it after any separation or major falling-out, because your later conduct can sever it. Second, if you are thinking of adding a child to title or an account, decide and record whether you mean it as a true gift of survivorship or only as help managing your affairs, and say so in writing. A clear statement of intention is far cheaper than the estate dispute its absence invites.
Frequently asked questions about joint tenancy in BC
What is the difference between joint tenancy and tenancy in common?
In a joint tenancy, co-owners each hold an interest in the whole property with a right of survivorship, so when one dies the survivor takes the whole, outside the estate. In a tenancy in common, each owner holds a distinct share with no right of survivorship, and that share passes under their will or the intestacy rules. Severing a joint tenancy converts it into a tenancy in common.
Can a joint tenancy be severed without both owners agreeing?
Yes. Under the Williams v. Hensman rules that BC courts apply, a joint tenancy can be severed by one owner acting on their own share, by mutual agreement, or by a course of dealing showing the owners treated their interests as separate. The last route can happen through conduct, such as dividing assets on separation, without a signed severance document.
If I add my adult child to my home’s title, do they automatically get it when I die?
Not automatically. Under Pecore v. Pecore, a gratuitous transfer into joint tenancy with an adult child is presumed to create a resulting trust, meaning the child is presumed to hold the survivorship interest for your estate. To keep the property, the child must prove you intended to gift them the right of survivorship. Otherwise the asset falls back into your estate.
How do I make sure survivorship works the way I intend?
Record your intention in writing at the time you set up or change the ownership. State whether a transfer to a child is a genuine gift of survivorship or only for convenience, keep that documentation, and review joint ownership after any separation or family dispute, because later conduct can sever a joint tenancy and defeat survivorship.
Does severing a joint tenancy affect probate?
It can. A joint tenancy with survivorship passes outside the estate and outside probate. Once severed into a tenancy in common, the deceased owner’s share passes through their estate and can form part of the probate assets, dealt with under the will or the intestacy rules. That change is often the whole point, or the unintended consequence, of severance.
Disclaimer: This article is general legal information about British Columbia law, not legal advice for any particular situation. Reading it does not create a solicitor-client relationship. BC law and procedure change, and the rules that apply to any specific case depend on facts not covered here. For advice on how you hold property or on your estate plan, speak with a qualified British Columbia estate lawyer directly.