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Friday, July 12, 2019

Ontario case severing joint tenancy could affect many wills

There is a new case in Ontario that has the potential to affect a lot of people who own their homes jointly with their spouses or others.

In the case of Marley v. Salga, a husband and wife (Mr. and Mrs. Marley) owned a house as joint owners. They understood this to mean that if one died, the other had a right of survivorship and would become the sole owner of the property. However, Mr. Marley made a will that directed his executor “To allow my wife, KAREN ANNE MARLEY, if she survives me, the use, occupation and enjoyment of my one-half (1/2) interest in the house.” Upon the wife's death, the house would be sold and the money paid to their daughters.

A right of survivorship would not allow a person to put this sort of clause in their will. After all, how can you give Mrs. Marley the right to live in something she already owns? But after Mr. Marley died, the will was upheld as being valid, including this clause. So what happened to the joint tenancy and right of survivorship?

Severing a joint title means splitting it among the joint owners so that it becomes a tenants-in-common situation with no right of survivorship any longer. It doesn't happen very often, but when it does, it's usually the result of two joint tenants who have fallen out with each other and no longer want to own something together. The judge in this case severed the joint tenancy based partly on what was said in the will but also based on other evidence. This means that Mrs. Marley received only half the title to the house and did not get the title to the half owned by her husband.

It's important to note that the judge said specifically that the clause in the will alone was not enough to sever the joint tenancy. However, it was one piece of evidence that supported the idea that both parties (that is, Mr. and Mrs. Marley) agreed to sever the joint title.

The importance of this case is that it used to be a lot harder to sever joint tenancies. This is an unusual case and it doesn't mean that every time a clause like this shows up in a will, the surviving joint tenant is out of luck. But it seems to me that having a clause like this in a will opens the door to increased litigation. I can see greedy children pouncing on this like vultures. This worries me because a lot of people make their own wills, and because they never talk to lawyers, they tend not to understand how joint tenancy works.


  1. Lynne,

    I read most of the Marley v. Salga, 2019 ONSC 3527 (CanLII). What a Royal Mess.
    I do understand the part of 'greedy kids'. This involves a second marriage for the father, Mr.Salga who had 3 kids from a previous marriage. The son, if I am correct, was left out of the 'will'. I believe he has a legal right to sue. I believe it is wise to always leave something to every child ie a cash amount ie 10K.
    This 'will'. The way it was written definitely created the possibility of a 'loophole' for it to be contested IMO. Lynne, perhaps you can comment on that. I understand what the father wanted to do, he wanted to assure that his blood children, his 2 daughters got a fair share of his Estate. I do question the role of the lawyer who drafted the 'will'. What follows with everyone involved comes across like an episode from a daytime TV show.
    It is also my impression that perhaps the 2 girls and the 'stepmother' were not on the best of terms?
    I agree with you that 'wills' are very important. The Marley v. Salga case shows how some 'wills' can also lead to a messy and unplanned outcome. Ms Marley and Mr Salga never expected this outcome. I wonder what the final legal bill will be for this..both sides.

    My Estate matter, is so simple compared to this. The 'will' is simple and straight forward. I keep waiting for someone to make a move. Months go by and no action.

    1. Estate planning for blended families is always a balancing act. Most people who have children from a first marriage do, as you say, want to provide for those children. There is nothing unusual about that wish. I spend a lot of time with couples in their second marriages planning how to distribute assets among two families in a way that makes the most of those assets. What is unusual in this case was that they treated a joint asset like an asset that was not jointly owned. This is what created the confusion - and the lawsuit - about whether it was joint or not.

      Any lawyer who drafts wills for a living would have spotted that anomaly and done something about it: either dividing the property while the parties were alive, or doing a better job on the will so as to make intentions clear.

      I also want to comment on your statement that it is wise to leave something to every child in order to prevent the right to sue. That is one way, I guess, especially if it is combined with a "any beneficiary who contests this will gets nothing" clause, but I don't agree with your statement. The idea behind leaving a little something to everyone is to show that the person was not accidentally forgotten. The same thing can be achieved by including a simple statement in the will that the testator considered leaving something to that person and decided against it. That also shows the would-be beneficiary that he or she was not forgotten and the omission of his/her name was not a typo.



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