Christy NK Tang, Student-at-Law
Bianca Gonsalves, Intern

In general, a function of Wills is to list out how we would like to distribute our assets and belongings when we pass. However, a problem occurs when the ownership of real property set out on a Will is different from that on a deed.

For instance, the ownership of a house is in joint tenancy on the deed. However, the Will mentions that the house is owned by tenants in common.

Under joint tenants, the ownership passes by survivorship. The surviving owner inherits the deceased’s shares automatically. Under tenants in common, however, the deceased’s shares do not automatically go to the survivor owner but to the estate being distributed by the will.

The Problem with Inconsistency: The Williams Test:

What would the court do if tenants in common stated on the Will while joint tenancy is stated on the deed? Would the ownership pass to the estate or the surviving owner?

In the case of Williams v Hensman[1]and Hansen Estate v Hansen[2], the court conducts the William Test. This test provides that a joint tenancy can be severed by 1) unilateral action by a one tenant; 2) mutual agreement amongst all tenants; 3) a course of dealings amongst all tenants.

1)      Unilateral Act: Severance by unilateral act allows joint tenancy to be severed as a result of one party forfeiting her/his interest or discontinuing her/his joint tenancy. In a unilateral severance, such party may forfeit her/his interest by transferring her/his share to another tenant or third party altogether, or, discontinue transfer her/his share to himself to convert the joint tenancy to tenants in common. This type of severance does not require notice to other joint owners.

2)      Severance by Agreement: Severance by agreement, however, requires all joint tenants agree that their relationship to ownership is now as tenants in common. The agreement can be informal, which may be expressed or inferred in equity.

3)      Course of Dealings: Severance by a course of dealing, nevertheless, focuses on expressed intention of each party cumulatively. This form of severance relies on implied intention through the owners’ actions and communications such as conversations and actions that suggest the handling and dealing of their affairs separately rather than jointly.

How does the Court apply the Williams Test to Wills and Deeds?

Using the Williams Test, the court assesses if joint tenancy can be severed and passed down to the estate by the will through the following steps:

1)      First, the court may look at whether the deceased has another deed for the property that reflects a transfer of ownership from joint tenancy to tenant in common.

2)      If another deed is not found, the court may examine whether all joint tenants formed an agreement to change the nature of their ownership to reflect tenants in common.

3)      If no agreement mutual agreement is found, the court may then look at any proof of intention through prior communication or conduct amongst the joint tenants.

To conclude, if there is no alternative deed, agreement, and proof of the intention regarding the severance of the joint tenancy, the deceeased’s interest in the property may not pass to the estate even if the Will provides so.[3]

Landmark Law Professional Corporation may assist in the preparation of your trusts and Estate planning matters.

Disclaimer: This article does not contain legal advice and only provides general information. It is not intended to replace advice from a qualified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this article before making decisions. Use of this article does not establish a lawyer-client relationship.

[1] Willams v Hensman (1861), 1 John & H. 546, 70 E.R. 862.

[2] Hansen Estate v Hansen, 2021 ONCA 112 (CanLII)

[3] Concillia Muonde, Severed Relationship, Severed Joint Tenancy? 2018 CanLIIDocs 10845.