Gifting of Irrevocable Right of Survivorship

Recently, Alberta’s Court of King’s Bench held an inter vivos gift of a joint interest in real property may be irrevocable where a party intended to gift an irrevocable right of survivorship.

In Pohl v Midtal, 2017 ABQB 711, a mother and father transferred their interest in a quarter-section of farmland to themselves and their daughter as joint tenants. The parents had intended to live on (and farm) the quarter-section until they were unable to do so and, thereafter, for their daughter to assume possession of the quarter-section. Several years post-transfer, the father’s relationship with his daughter had deteriorated. The father, on his own behalf and as the mother’s attorney, registered a transfer thereby severing the parties’ joint tenancy and rendering the daughter a tenant in common. This transfer worked to “reduce” the daughter’s joint interest in the quarter-section to a mere one-third undivided, common interest. The effect of this “reduction” was to deprive the daughter of a right of survivorship (i.e., an entitlement to the whole quarter-section upon the death of her parents). The daughter, accordingly, brought an action against her (deceased) parents as means of recovering her joint interest in the quarter-section.

Briefly, the Court of King’s bench held a party gifting a joint interest is presumed to retain the ability to sever same. The Court, however, held this presumption may be rebutted with evidence indicating a gifting party intended otherwise:
There is a presumption that the right of survivorship is given with the joint tenancy in a “normal” way, preserving the ability of the parent to sever. But that presumption can be rebutted by evidence that the intention of the transferor was to give an irrevocable right of survivorship which would prevent the transferor from applying to sever the joint tenancy in the future (at para 52).
Here, the Court held this presumption of severability had been rebutted and, as such, the daughter had been gifted an irrevocable right of survivorship. That is, evidence of the parents’ intentions (i.e., that their daughter would take exclusive benefit of the quarter-section upon their death) allowed for an inference they had relinquished their right of severance upon gifting her a joint interest in the quarter-section.

Accordingly, one ought to take caution when gifting a joint interest. While the law assumes a gifting party retains his/her right to sever a joint tenancy, care should be taken to document an irrevocable right of survivorship has not been gifted. Conversely, a gift of a joint interest in property with a right of survivorship may be confirmed in a will as a means of ensuring the intention of such a gift is understood by all parties involved.