Solicitor’s Tip – July 2025
When a will gifts an asset to multiple beneficiaries, it is not unusual for the will to be silent as to the intended form of joint ownership – specifically, whether the beneficiaries are to hold the asset as joint tenants, or as tenants in common. This month’s Solicitor’s Tip addresses the form of beneficial ownership presumed by law when a will does not address this point, making the case that will drafters ought to address the form of beneficial ownership desired by the testator when drafting the will. Potential ramifications of failing to specify the intended form of joint ownership are also addressed.
Applicable Legal Presumptions When Assets Are Given to More Than One Beneficiary
When a will does not address the beneficial ownership of an asset left to multiple beneficiaries, the form of ownership may be determined under the common law or, when applicable, under statutory provisions.[1]
If a will gifts real property to multiple beneficiaries without specifying the form of ownership, they will take the property as tenants in common pursuant to the Conveyancing and Law of Property Act.[2] Subsection 13(1) provides that when land is devised to two or more persons by will, they will “take as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the … will, that they are to take as joint tenants.”[3]
For gifts of personal property, the common law rule will apply if the intended form of ownership is not addressed in the will, meaning that the beneficiaries will inherit the asset as joint tenants, complete with a survivorship interest.[4] As noted by Justice Cullity, “[t]he rule that a transfer of property to two or more persons prima facie creates joint ownership in the strict sense,” including a right of survivorship, “still applies to personalty.”[5]
Rebutting the Presumptions
Both presumptions may be rebutted by the terms of the testator’s will.[6] For gifts of real property, a tenancy in common will not be presumed if a contrary intention appears on the face of the testator’s will, indicating that the property is to be held by the beneficiaries as joint tenants.[7] To rebut the presumption applicable to personalty, in comparison, it is only necessary to put forward “slight evidence that ownership in common was intended;” moreover, rebutting the presumption “does not depend upon the presence of words such as ‘joint’ or ‘jointly’ or references to the right of survivorship.”[8] For example, simply indicating that a gift is to be divided may be sufficient to overcome the presumption of a joint tenancy.[9]
When determining whether an asset is to be held by beneficiaries as tenants in common or joint tenants, the court may utilize established principles of will interpretation. For example, the will is to be read as a whole, and the form of beneficial ownership intended may be inferred through how the language used in the salient will clause is used elsewhere in the will. The armchair rule also applies, so that the will is interpreted in light of the surrounding circumstances that existed when the will was made. The court used these interpretive principles in Love v Wheeler to conclude that a will clause which transferred the deceased’s house and farmland to her sons “jointly or [to] the survivor of them, for their own use absolutely” was intended to leave the land to them as tenants in common.[10]
To prevent litigation around whether the testator intended the beneficiaries to receive an estate asset as joint tenants or tenants in common, it is advisable to draft the will to expressly state which form of joint ownership is intended when gifting an asset to multiple beneficiaries. Relying on the presumptions to govern the beneficial ownership of an estate asset is ill-advised, as there is an inherent risk that the asset may be distributed differently than the testator intended, depending on what evidence is before the court.[11]
Potential Ramifications When a Will Is Silent as to the Form of Joint Ownership
The form of joint ownership of an asset gifted to multiple beneficiaries becomes particularly important once one of the beneficiaries dies. For example, if a beneficiary passes away after the testator, and also after the gift has vested, but before the gift is distributed, the form of joint ownership ought to be determinative of whether the estate of the deceased beneficiary inherits the beneficiary’s share of the asset, or whether it goes to the surviving beneficiary pursuant to the right of survivorship.[12]
The form of joint ownership may also be salient after a gift has been distributed. For example, if multiple beneficiaries, such as a husband and wife, are gifted an asset like shares, and take no steps to change the form of ownership after the shares are distributed, the common law presumption of joint tenancy and the right of survivorship would continue to apply. Accordingly, once one of the beneficiaries passes away, the shares would go to the surviving beneficiary rather than to the deceased beneficiary’s estate.[13] When dealing with real property gifted to multiple beneficiaries, the beneficial form of ownership may also become an issue once one of the beneficiaries passes away, as demonstrated by the dispute in Love v Wheeler.[14]
Conclusion
When a will gifts an asset to multiple beneficiaries, it is advisable to state the intended form of beneficial ownership intended by the testator, to prevent future litigation once one of the beneficiaries passes away. If the will is silent, the law may presume that real property is held by the beneficiaries as tenants in common, and that personalty is held in joint tenancy, with a survivorship interest, whether such an outcome is consistent with the testator’s actual intentions or not.
[1] The form of ownership determined by law also applies to substitutional gifts in a will: see Ian M. Hull and Suzana Popovic-Montag, Feeney’s Canadian Law of Wills, 4th ed. (Toronto: LexisNexis, 2000) (loose-leaf) at §12.41 [Feeney’s].
[2] R.S.O. 1990, c. C.34, s 13(1).
[3] This provision does not apply to shares in a housing co-operative; such shares are considered personal property under the Co-operative Corporations Act, RSO 1990, c C.35, s 42. See Gruber v Glickman Estate et al, 2025 ONSC 258 [Gruber].
[4] See Feeney’s, supra note 1at §12.40. See also Hardy v The Estate of Louise Winters Hardy, 2022 ONSC 1966 at para 13a. [Hardy].
[5] Cho Ki Yau Trust (Trustee of) v Yau Estate, 1999 CarswellOnt 3232 at paras 39 [Cho Ki Yau Trust], citing Niles et al v Lake, 1947 CanLII 5 (SCC).
[6] See Clements v Everson, 2024 ONSC 4885 at para 54 [Clements].
[7] Conveyancing and Law of Property Act, supra note 2, s 13(1).
[8] Cho Ki Yau Trust, supra note 5 at para 39.
[9] See Feeney’s, supra note 1at §12.41, citing Re Froy, [1938] Ch. 566, [1938] 2 All E.R. 316 and discussing a will which left property “to be divided among my children then living or the issue of any deceased child”.
[10] 2019 ONSC 4427 [Love].
[11] Even if direct evidence of the testator’s intention is available, it may not be admissible. See Love, ibid at paras 23-27.
[12] In fact, the salient provision in the Conveyancing and Law of Property Act, supra note 2, developed as a result of the courts of equity perceiving the unfairness of an entire property belonging to a survivor and the deceased’s estate receiving nothing due to the operation of the common law. See Hardy, supra note 4 at para 13.
[13] See, for example, Gruber, supra note 3.
[14] Supra note 10. See also Clements, supra note 6.