Joint tenancy is a type of ownership in property that involves two or more persons. The individuals have joint ownership, or equal rights to the whole of the property; if one of the joint tenants dies, the remainder of the property automatically transfers to the surviving joint tenant(s), and not to the estate of the deceased. This is referred to as the right of survivorship. (This is opposite to a tenancy in common where the deceased’s share forms part of the deaceased’s estate).
When a parent registers his or her assets in the joint names of his or her adult child (or puts assets into a joint bank account) the question becomes whether the parent intended to have the assets or funds to go to that child upon his or her death, or to have the adult child hold the funds in trust for the benefit of the parent’s estate to be distributed according to the terms of his or her Will.
JOINT TENANCY REBUTTABLE PRESUMPTIONS
Generally, there are two types of rebuttable presumptions (an assumption made by a court that is taken to be a fact unless it is contested and proven otherwise) that apply to these cases:
- Presumption of resulting trust – where the holder of legal title does not hold the property personally but, rather, holds the property as a trustee for the benefit of the entire Estate.
- Presumption of advancement – suggests that the property transferred from parent to child, or spouse-to-spouse, is a gift to that person in its entirety.
These principals came from the 2007 companion decisions of the Supreme Court of Canada in Pecore v. Pecore, 2007 SCC 17 and Madsen Estate v. Saylor, 2007 SCC 18:
The presumption of advancement:
- applies equally to fathers and mothers;
is limited only to transfers between mother and fathers and to their children that are minors; and therefore does not apply to adult children or even to dependent adult children;
The presumption of resulting trust:
- is the general rule for gratuitous transfers (transfers where there was no consideration for the transfer);
- the onus is placed on the transferee (adult child) to demonstrate that a gift was intended.
Either of these presumptions may be challenged using evidence that shows that the parent had a different intent.
The types of evidence that should be considered in ascertaining a transferor’s intent will depend on the facts of each case. This evidence needs to be relevant to the transferor’s intention at the time of transfer.
Such evidence may include:
- written documents;
- who contributed to the initial purchase or funding
- who maintained the asset;
- wording of bank account documents;
- control and use of funds in the account or the asset;
- granting of a power of attorney;
- tax treatment of the interest from a joint bank account.
ENSURE INTENTIONS OF JOINT TENANCY
If you are an adult child who holds a joint asset or a joint bank account with your parent, it does not mean that you will automatically be entitled to the asset or funds upon his or her death (the right of survivorship). You may have to prove that it was your parent’s intent that the property was a gift.
If you are a parent that is considering placing assets in joint tenancy with adult children, consider the following:
- Is your intent to gift the property to your child or do you wish that the child take the interest in the property in trust for the benefit of your estate?
- If it is a gift, ensure that your intent is clear, i.e. a deed of gift signed by the parent.
- If it is a trust, contemplate the terms of the trust and have your adult child acknowledge the terms in writing.