Property in Wills and Estate (16:IX)
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 20, 2024. |
A. Joint Tenancy and Tenancy in Common
Where property is owned by more than one individual, it may be held in “joint tenancy” or “tenancy in common.” The main difference between a joint tenancy and a tenancy in common is that, in the case of a true joint tenancy, each joint tenant receives the right of survivorship. The result is that, upon the death of one joint tenant, the other becomes entitled to the whole of the property. The testator’s interest in the property does not form a part of their estate and does not pass under the will. Instead, it passes “outside the will” to the surviving joint tenant(s).
The right of survivorship has its benefits as well as problems. Because the testator’s interest in the property held under joint tenancy does not become a part of the estate, probate fees related to the property can be avoided as the interest passes outside the will. Placing assets in joint tenancy may also avoid costs and delays associated with obtaining probate. Furthermore, a beneficiary of a will who is not satisfied with their gift under the will cannot make a claim under WESA to obtain a greater share in the estate for property that passes outside of the estate. One drawback of placing assets in joint tenancy is that the surviving tenant owns the asset and does not need to respect the will-maker’s wishes on how they may have wanted their asset dealt with after their death.
In contrast, where owners hold an interest in the property as tenants in common, each has a separate undivided share. Upon death, each owner’s individual share forms part of their estate.
B. Joint Bank Accounts
When a joint bank account is created, many assume that when one owner dies, the survivor is automatically entitled to the remaining balance in the account. However, this is not always the case.
In Pecore v Pecore, 2007 SCC 17, the Supreme Court of Canada held that when a parent creates a joint bank account with an adult child, it is presumed that this arrangement is made out of convenience, and there was not an intent by the parent for the balance of the account to pass to their adult child by way of survivorship. Unless the intention for the account to pass to the adult child through survivorship is clear when the bank account is set up, courts will presume that the balance in the joint account is to be held by the child in a resulting trust for their parent’s estate. It is then up to the child to prove that their parent intended to gift the bank account to them. If the child fails to establish such an intention, the balance of the account forms a part of their parent’s estate and is distributed according to their will or the law of intestacy.
The Court will consider many factors when determining the deceased’s intention in situations involving joint bank accounts. For a detailed discussion of these factors, please see:
C. First Nations and Wills Notes on LSLAP File Administration
An LSLAP clinician must decide whether or not the client comes within the scope of the Indian Act, RSC 1985, c I-5. Section 45(3) is the relevant section of the Act; it provides that a will executed by an Indian, as defined by the Act, is of no legal force and effect as a disposition of property until
- the Minister has approved the will or
- a court has granted probate pursuant to the Indian Act.
The clinician must also be aware of the on-reserve/off-reserve Indian dichotomy. A First Nations person living off-reserve is essentially under the same rules and constraints as any other Testator who isn’t classified as an “on-reserve Indian.”
D. Key Concepts
The definition of “Indian” in the Act means “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian.” The Indian Act states that “[t]he Minister may accept as a will any written instrument signed by an Indian in which they indicate their wishes or intention with respect to the disposition of their property upon [their] death.” “Instrument” in this context does not mean anything special: letters, wills, and notes are all “instruments.”
Finally, if a registered First Nations person “living on reserve dies intestate, or their will is not clear or not valid, the Department of Indian Affairs will apply to the estate the rules set out in the Indian Act and the Indian Estates Regulations, CRC 1978, c 954.”
For further information on wills for First Nations persons, consult Chapter 29 of the 2020 CLEBC Wills and Personal Planning Precedents.
- NOTE: It is important to determine whether there exist any applicable treaties that may affect a First Nations client’s will. For example, the Nisga’a Treaty provides that Nisga’a citizen’s cultural property devolves according to Nisga’a law.
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