TUTORIAL: CO-OWNERSHIP Question 1 Harry Harrison has drafted his own will and refused to get legal advice because he thinks it is too expensive. In a part of this will, he leaves his real property at 22 Norton Street, East Brisbane as follows: "To my three children, Joseph, Ariana and Edward who shall take ownership of 22 Norton Street, East Brisbane in equal shares as joint tenants." What is the likely effect of Harry's clause? Phrase 'equal shares as joint tenants' suggests creation of a tenants in common co-ownership because in joint tenancy the property is owned together as a whole. In case of Re Rose similar phrase used and it was held that 'equal shares' was more significant to determining what was bequeathed because inconvenience attached to joint tenancy (i.e. right of survivorship) led to court leaning in favour of tenants in common - CL was displaced by Stat tests (PLA s35 presumption that where in doubt tenancy should be construed as tenant in common - So likely the effect of Harry's clause is each child will take ownership of the property as tenants in common Issue: Will the property be held by the children as joint tenants/tenants in common? Law: real prop can be held as tenants in common (distinct shares) joint tenants (non-distinct shares) - Creation of co-ownership can occur by express words. - Distinction is important because prop held in joint tenancy passes automatically through survivorship whereas TIC doesn't - Facts analogous to Re Rose - court held that use of words 'in equal shares' was more important/significant to determining what was actually bequeathed/what particular tenancy was created. Use of the words JTff while importantff was no means conclusive. - Howeverff CL presumptions now subject to stat tests. Where there is doubt a tenancy should be construed as TICff howeverff this won't apply where there is a disposition that provides that the persons are to take the property as JT. Here there is doubtff s35(1) will apply and the disposition of the beneficial interest in Harry's prop shall be construed as made to Josephff Arianaff Edward as TIC not JT - S56 Land Titles Act What are the words of severance: 'in equal shares as JT' [Re Rose; Re Barbour] - problematic suggests 50/50 ownership where no particular shares are grantedff therefore conflicting Intention to create TIC: courts will generally construct as TIC especially if minors - even a small indication will be sufficient [Re Rose deceased] - In these circumstances it's possible to look at the contextual factors - Wording echoes that of Re Rose. there is was held the use of words 'in equal shares' were the most sig. in determining tenancy and the presumed intention was TIC. It isn't clear on facts if the children are infants like in Re Rose
- Howeverff facts similar to Re Barbour where the testator bequeathed prop to siblings. Thereff the nature of the interest as a family farm was considered persuasive in finding the testator's intention