June 16, 2026
The right of survivorship is why people buy property as joint tenants or transfer the property from their name alone to joint tenancy with another. Joint tenancy contrasts with tenancy in common, usually used by business partners, or siblings, which has no right of survivorship- if one owner dies, their interest passes through their estate.
The right of survivorship means that after death of one joint tenant, their interest does not pass as part of their estate. It is not subject to probate tax, land transfer tax, or the claims of creditors.
It is often an important part of people’s financial planning. It may make a lot of sense for spouses, or to provide for your children after your death.
The right of survivorship may apply to real estate, or other assets such as bank accounts or investments.
THE ISSUE
Which is all fine and good until there is a falling out – a marriage breakdown, for instance, or a fight with your child, or a fight between your children after your death (which is a particular concern if you have several children but put only one on as joint tenant).
What happens then?
THE DOCTRINE OF RESULTING TRUST
The result depends on who is the true owner of the property.
What does that mean?
There is a difference between paper title, or legal title and actual ownership, called beneficial ownership.
We have written before about the presumption of resulting trust, which, simply put, assumes that if one person pays to buy the property, they are the real owner regardless of whose name is on the paper title.
SEVERING THE JOINT TENANCY
When there is a falling out between joint tenants, often one person will sever the joint tenancy by conveying their interest to themselves as a tenant in common.
So you might think that after the severing of the joint tenancy, each tenant in common has an interest which can pass to their heirs, right?
Not so simple.
THE CASE
In Jackson v Rosenberg, the Superior Court judge who heard the application found that a resulting trust existed during Mr. Jackson’s life, allowing him to dispose of the property as he saw fit, and retain the proceeds, but upon his death, there was a right of survivorship, a separate interest, which was subject to an immediate and irrevocable gift to Ms. Rosenberg, and a gift cannot be taken back.
So, said the trial judge, severing the joint tenancy cannot extinguish that gift which already was made so she becomes a 50 per cent beneficial owner of the property on his death.
The Ontario Court of Appeal said, “not so fast”.
In a rare two-part judgment, they held that If the doctrine of resulting trust applies, two different situations might exist:
- Do they intend a resulting trust during their lifetime, but a right of survivorship upon their death? This is a common situation, where the intent is to keep the property out of the estate. This is what the trial judge found to be the answer.
- Do they intend a resulting trust whereby the interest results back to their estate? This is what the Court of Appeal found was Mr. Jackson’s intention.
As they put it: “what Ms. Rosenberg continued to hold was an interest in a tenancy in common in trust for Mr. Jackson. No right of survivorship could attach to or flow from that interest.”
In the second part of their judgment, they amended the trial judge’s order to state that when Mr. Jackson dies, 100% of whatever equity remains in the property will become part of his estate.
It is noteworthy that in other provinces, different results have been ordered in similar situations. The Supreme Court of Canada has not yet clarified the law.
TAKEAWAYS
- how you hold title to your property has important consequences;
- an absolute gift cannot be revoked if you change your mind;
- so, whether you intend a gift or a trust is important;
- because intention is a question of fact, each case depends upon the evidence of those facts:
- documenting those intentions in case a dispute later arises is a good idea;
- but remember, if you document a gift rather than a trust, written evidence often outweighs what parties say later;
- so that evidence may determine the result of any later dispute; and
- thinking about all of the “what-ifs” , with your lawyer as well as your financial planner, is important.
WHAT WEILERS LLP CAN DO TO HELP YOU
We can be your trusted advisors on estate planning and real estate issues. We will work with you and your financial advisors to avoid unintended results.
If you find yourself in a lawsuit over property or an estate, the experienced litigation team at Weilers LLP may be the right lawyers for you.