Vesting Order Granted For Retroactive Joint Tenancy After Death Of Spouse

• Published date: 05 April 2022
• Subject Matter: Intellectual Property, Real Estate and Construction, Patent, Landlord & Tenant - Leases
• Law Firm: Gardiner Roberts LLP
• Author: Mr James R.G. Cook

Spouses often take title to a property as joint tenants rather than tenants in common due to the "right of survivorship," by which the surviving spouse assumes sole title to the jointly held property upon the death of the other. While an application must ordinarily be filed by the surviving spouse pursuant to section 123 of the Land Titles Act, to remove the deceased's name from the register, this is not a conveyance per se as the interest of the deceased spouse does not "transfer" to the surviving spouse. Essentially, the interest of the deceased spouse disappears, leaving the surviving spouse as the sole title holder. The property does not form part of the estate of the deceased spouse, does not require probate, and is not included in the calculation of estate administration tax.

Issues may arise, however, when title was either not properly registered as a joint tenancy or when one of the spouses attempted to sever the joint tenancy before their death. The latter situation resulted in the practice of "zombie deeds" whereby transfers were registered in the names of deceased owners, a practice strongly opposed in Ontario by the Director of Titles (A Lot From the Dot: Zombie Deeds are Dead! May 28, 2020!).

In other situations, however, an error in the registration of title may not have reflected the true intentions of the owners. In Hardy v. Estate of Louise Winters Hardy, 2022 ONSC 1966 (CanLII), the Ontario Superior Court of Justice provided some guidance on how to resolve the situation by seeking a vesting order.

In 1986, a husband and wife bought a property in what is now part of London, Ontario and attended at a lawyer's office with instructions to be registered as joint tenants of the property. For reasons unknown, but which the lawyer later attributed to probable inadvertence, the Transfer/Deed stated only that the property was being transferred to the spouses, leaving the capacity in which they were taking title as a complete blank.

As a result, the parcel register for the property simply indicated that the property was the subject of a transfer to the spouses, without indicating whether they took title to the subject property as joint tenants or tenants in common.

The wife died intestate in March 2021. At the time, she was still married to her husband and living in the subject property. She had one adult son.

Upon discovery of the state of the current registry, the husband sought a vesting order from the court to have title registered in his sole...