When someone passes away, questions often arise concerning how their assets are distributed. This depends not only on the deceased’s will, but also on how certain assets were owned. The right of survivorship is a key part of BC estate law, as it can completely change who ultimately receives property or bank accounts following a death. In some situations, this right is straightforward. In others, it leads to complex disputes, especially among family members. Understanding right of survivorship and how it impacts estate litigation is critical for those expecting to receive an inheritance from a loved one.
What Is the Right of Survivorship?
The right of survivorship is a legal principle that affects how jointly owned property is transferred when one owner dies. It specifically applies to joint tenants, which is a type of property ownership where two or more people hold an interest in the same property as a single undivided unit. Homes owned by spouses, joint bank accounts, and investment accounts or vehicles registered to more than one person are common examples. When a joint tenant dies, their share of the property is automatically passed to the surviving joint tenant(s).
Right of Survivorship vs. Will: Does Survivorship Override a Will?
In most cases, the right of survivorship overrides a will. When an asset is truly held in joint tenancy, the surviving joint owner automatically receives the entire asset once the other owner passes away. Because this transfer occurs outside the estate, the asset doesn’t need to pass through probate and isn’t controlled by a will.
This means that a beneficiary named in the will cannot claim the joint asset, even if the will appears to direct it to them. However, the key question in many disputes is whether the right of survivorship actually applies. The fact that someone’s name appears on a property title or bank account does not automatically mean the deceased intended the surviving joint owner to inherit it.
Is Challenging Right of Survivorship Permitted in BC?
The right of survivorship can be challenged if evidence shows that the asset in question was never meant to automatically pass to the surviving owner. There are a few relevant examples that apply here.
Resulting Trust
When a parent adds an adult child to a joint account or property, the law presumes it was done for convenience, as opposed to a gift. This is the presumption of resulting trust. This means that the surviving joint owner doesn’t automatically get to keep the asset. Rather, the onus is on the surviving owner to prove that the deceased intended to gift the asset through survivorship. This is one of the most common right of survivorship dispute examples in BC.
Undue Influence
If the deceased was pressured or coerced into establishing a joint asset, the transaction can be challenged. Courts carefully review situations involving vulnerable adults, caregiver-child relationships, and late-in-life changes to titles or accounts.
Lack of Mental Capacity
If the deceased lacked capacity when they added someone as a joint owner, the joint ownership may be invalid, and the right of survivorship may not apply.
Fraud or Misrepresentation
Survivorship may be challenged if the joint ownership was created under dishonest or misleading circumstances.
When the Right of Survivorship Does Not Apply in BC
There are situations in BC where the right of survivorship does not automatically apply, even when property is held as a joint tenancy. These rules are set out in the Wills, Estates, and Succession Act (WESA) to ensure fairness in cases of simultaneous or uncertain deaths.
Simultaneous Death
Under Section 5 of WESA, if two people die at the same time, or it is impossible to determine who died first, the law treats each person as having survived the other. In this scenario, neither individual inherits from the other.
Instead, any jointly owned property is treated as if it were held as tenants in common, meaning each person’s share is distributed through their own estate rather than automatically passing to the other joint tenant. This prevents property from passing between deceased individuals and ensures it reaches the intended beneficiaries.
The Five-Day Survivorship Rule
Section 10 of WESA states that a person must survive the deceased by at least five days to inherit from them. If this cannot be proven, the law treats each person as having predeceased the other.
For jointly owned property, this means that the asset is divided equally: if there are two joint tenants, each estate receives 50% of the property, and if there are three or more, the property is split into equal shares among their respective estates. In these cases, the right of survivorship does not apply, and the property becomes part of each person’s estate instead of automatically passing to the surviving joint owner.
Contact Stephens & Holman for Estate Litigation Support
Issues involving the right of survivorship can be complex, emotional, and highly fact-specific. Whether you are disputing a joint account, concerned about undue influence, or unsure how WESA affects a jointly owned asset, the lawyers at Stephens & Holman can help. Contact us today to schedule a free consultation. We’ll review your claim and start building your case.