Finley McEwan died and left a lot of land to his two daughters "jointly, and should they decide to sell the said property each of them is to have an equal share of the proceeds". One of the daughters died, and left her share to her brother in her will. If this was a joint tenancy, then the sister had nothing to leave to her brother, as her share would have defaulted to her sister. The plaintiff is the brother who wants the estate to be deemed to have been a tenancy in common, so that she could pass her share to him.
- Is the common law presumption of joint tenancies still in effect?
Judgment for the plaintiff.
Barlow says that although there was an old common law presumption of joint tenancies, this has been reversed by statute. In Ontario, the Conveyancing and Law of Property Act has made a presumption in favour of tenancies in common, even when the word "jointly" is used, as it was here.
In the result, the estate created for the daughters was a tenancy in common, and the daughter was fully justified in leaving her half to her brother in her will as tenancy in common interests can be passed on to other parties.
- The old common law presumption in favour of joint tenancies has been reversed by statute; there is now a presumption of tenancies in common, even if the word "jointly" is used.
- Interests in tenancies in common can be passed on through wills.