Lawyers often say that estate litigation is like family law with dead people because in both, disciplines emotions tend to run high.
In a recent case, the deceased who had adult children from his first marriage had re-married – a situation which often provides disputes.
The 2 had been married for 16 years. About 5 years after they married, they brought a home and took title to it as joint tenants (in other words, the survivor would automatically inherit). They lived together in that home until the male died in 2015.
If the couple had taken title as “tenants in common” it means if one owner dies, the deceased share would pass to his or her estate which will then be distributed under the terms of the deceased Will. It may be that it does not automatically pass to the surviving co-owner.
Shortly before his death, in the example quoted, the man made a Will which said amongst other things, that upon his death, his Wife could continue to have the use of his one half interest in the matrimonial home until either her death, her decision to co-habit with another person or until she no longer wished to live there. Upon the happening of one of those events, the house was to be sold and the net proceeds divided with the Wife receiving her 50% and Husband’s 50% going to his 2 daughters.
About 2 years after the Husband’s death, the daughters started litigation against their Step-Mother asking that the house be sold so they could get their share of the net proceeds of sale.
In this case, the Judge hearing the application dealt with the case as if it were a separated couple who continued to hold property as joint tenants after one of the spouses had died.
The daughters argued their Father and his Wife had embarked on a course of conduct that had severed the joint tenancy. In assessing the evidence, the Judge relied on the evidence of the deceased friends as well as a recording one of the daughter’s produced.
The Judge found that there was a mutual course of dealing between the deceased and his Wife and as a result, the joint tenancy registered on the title was deemed to be severed. The deceased’s daughters therefore owned half of the property. Having made that decision, the Judge then parted company with the daughters saying that to make an Order for immediate sale would be to specifically set aside the Wife’s life interest in the house as set out in her Husband’s Will which would allow her to live there until she died, moved out or re-partnered.
The moral to the story is considerable time and money could have been saved if the deceased, or his Lawyer, had paid attention to the way title to the matrimonial home was registered when the deceased did his Will.