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Saturday, September 25, 2010

Change of joint title causes family rift

You readers certainly send me a lot of interesting questions. Here is another I recently received that I believe will be of interest to many of you: "I hold a house in joint tenancy with my mother. She became ill and decided to change her "will". She gave a copy of the title to her lawyer and asked him to include it in her "WILL". Was it legal for him to do this without letting me know what he was doing? My mother has since passed away, and it has created a huge split in the family."

There are a couple of issues here. Let's take them one at a time. My first question on reading this note was whether the title was actually held as joint tenants, or whether it was held as tenants-in-common. The fact that there are two names on a title doesn't make it joint, (which many people find hard to accept, but there it is) so it's possible that the writer of this question was incorrect as to whether it's joint.

That leads us to the issue of what a person can do with a title in his or her Will. If the title to the property really was a joint ownership, then there is a right of survival for the surviving joint tenant, in this case the son or daughter of the mother. Nothing the mother said in the Will would change that and the title to the entire property would pass to the surviving joint tenant.

On the other hand, if the co-owners of the property were tenants-in-common, then the mother could say in her Will who is to get the title to her half of the property. The other tenant in common would still own a half, while the second half was divided up per the Will.

As you can see, how an asset is owned makes a world of difference. How do you know whether you and the other person on your title are joint or tenants-in-common? Get an update title to the property from your local land registry and read it. The title will tell you. If it's not the way you want it to be, you can change it or fix it.

The next question asked by the writer of this question was whether it was legal to change the mother's Will without telling the other property owner. As far as I'm concerned, the lawyer was absolutely right to keep the mother's wishes private. The mother is the client, not the co-owner. Lawyers can't discuss their clients' instructions or situations with anyone else without the client's express direction or permission. Obviously this person's Mom believed she knew what she wanted.

Something I don't know about this fact situation that I would ask if this person came to see me in my office is how the mother and offspring came to own a house together in the first place. I'd be curious to know whether it was once the family home, and whether the son/daughter was the one paying for the property tax, mortgage and upkeep.

I'm sorry to hear about the split in the family, but sadly I'm not surprised. People taking legal steps such as putting property into joint names (or taking it out) without legal advice pretty much always leads to trouble. It seems so simple on the face of it - simply to change the name on something - but the fall-out from unintended consequences can upset the family for many years to come.

1 comment:

  1. Hi Lynne,

    I am a law student and I am doing an assignment on joint tenancy in Ontario.

    My question to you is how does one go about severing a joint tenancy, (if that is actually allowed)?

    thank you
    Carrin

    ReplyDelete

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