Property can be owned by two or more people as joint tenants or as tenants in common. The difference between joint tenancy and tenancy in common is the right of survivorship. A right of survivorship means the property automatically passes to the survivor. Only joint tenants enjoy this right.
In the cases of land owned by two or more people, it is presumed to be owned as tenants in common, unless the title states they are joint tenants.
If property is owned with another person as tenants in common, the property becomes part of the estate of the deceased and will be passed on according to the Deceased’s Will.
In joint tenancy, the property will pass to the remaining joint tenant by the right of survivorship. The property will not form part of the estate. When that happens the Will-maker’s spouse, children or heirs may find that the Will-maker’s original intention as set out in his or her Will has been frustrated by a last minute gift. Gifts of property to a surviving joint tenant can be set aside.
Methods to set aside the gift include:
- •Resulting trusts;
- •Promissory Estoppel; and
- •Severance of Joint tenancy