TENANTS IN COMMON AND JOINT TENANTS (Part 2)

It is often thought that the issue of tenants in common/joint tenants can only arises with regard to ownership of house and land. Not the case. Wherever two or more persons own the same property, the tenants in common/joint tenants issue may arise. So for example, if two persons own a car, the issue could arise whether each own an undivided share in the car (tenants in common) or each own 100% of the car (joint tenants).

An important area in which the issue may also arise is that of ownership of bank accounts. This was revealed recently when speaking to Godfrey (fictitious name) whose mother Nen Annette (fictitious name) died recently at the age of 98.

Nen Annette had several bank accounts in several banks. All the accounts were joint accounts with Godfrey. Godfrey volunteered that his mother had put his name on the accounts only in the last 10 years. She did that because she was losing her ability to move around freely. She therefore wanted Godfrey to have access to the accounts. She trusted Godfrey not to misuse the accounts. Godfrey said that he fully honoured his mother’s wishes and expectations.

However, Godfrey is deeply aggrieved. He lamented about an effort to disinherit him of the house in which he lived with his mother. Godfrey said that, several years ago, his mother made a will leaving the house for him. However, shortly after his mother’s death a will surfaced in which the house was left for another relative. That will was made just 3 months before Nen Annette’s death. Godfrey is convinced that his mother was tricked or pressured into signing that will.

Godfrey showed me a copy of the will. The will states that the funeral expenses and other debts must be paid from the bank accounts; and then it gives directions as to how the remaining substantial sums from the various accounts are to be shared.

To be sure, I asked Godfrey if the bank accounts referred to in the will were the same ones on which his mother had put his name. He assured me that they were. I said to him, “Well, in which case the money is yours”. Godfrey was obviously shocked to hear me say so. He wanted to know how come.

I proceeded to explain to Godfrey that by virtue of the fact that both his name and his mother’s name were on the accounts and that both had equal access to the accounts, the accounts were joint accounts. Since they were joint accounts, he owned the accounts as joint tenants with his mother. Since they were joint tenants, the doctrine of survivorship applies. The effect of the doctrine of survivorship is that when one joint tenant dies an account is owned by the surviving joint tenants. It goes straight to the survivors. None of it is available to be distributed as part of the estate of the joint tenant who died. Hence, since he, Godfrey, was the only other joint tenant, the accounts were owned by him solely.

Godfrey was confused. On the one hand he knows in his heart that his mother did not intend that the money in the accounts would be solely his. Even in the will that Godfrey considers to be the true will, his mother had left substantial monetary gifts from those accounts to several relatives. On the other hand,

Godfrey is convinced that the will that surfaced as his mother’s last will, and disinherits him of the house, does not reflect her true wishes.

“What should I do?”, Godfrey asked me. I told him that he can challenge the last will.

“I mean about the money”, he said.

“In law it is yours. But it’s a matter for your conscience,” I responded. That is how I honestly feel.

It will be interesting to see what Godfrey does. But the main takeaway from this story is this: when the same property is owned by two or more persons, there should be an awareness as to whether it is owned as tenants in common or as joint tenants and the effect of the difference. In particular, be careful when dealing with banks accounts since the mere act of putting someone’s name on an account to give then access to the account, even if purely as a matter of convenience, could end up with the person being the sole owner of the account.

JOSEPH EWART LAYNE

This article is for general information purposes only. Its contents do not constitute legal advice. Before you act on any matter in this article, seek advice from an attorney-at-law.

Joseph Ewart Layne is the Principal of JEL Professional Solutions Inc. He is a graduate of Hugh Wooding Law School; he holds a LLB (Honours) and a LLM (Corporate & Commercial Law) from London University and a LLM (Legislative Drafting) from UWI, St. Augustine. He also holds a BSc. (First Class Honours) in Applied Accounting from Oxford Brookes University and is an ACCA Affiliate.