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.