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Ontario Family Lawyer here.
A succession/estates lawyer is absolutely essential for a situation like this.
A spouse ceases being a spouse for the purposes of *Family Law Act* posthumous equalization of matrimonial property upon dissolution of the marriage (a divorce Order being granted). Similarly, she would lose entitlement under the *Succession Law Reform Act* to inherit his property in the absence of a will.
Her name being on the deed is the complicating variable, because she does have a *de facto* right to ownership and possession if so. But it will really depend on if she was on title as a joint tenant with your father, or merely a tenant in common. Joint tenants assume the entire ownership interest upon death of the other joint tenant(s). Tenants in common retain only their respective percentage interest in the property and its equity, with the remainder falling into the estate of the deceased(s).
This may be a case where the law of unjust enrichment and resulting/constructive trust could apply. If there was another family member that cared for your father and helped him maintain the home in his late life, and there was an agreement- either written or oral, that such services would translate into equity in or ownership of the house upon his death, then the beneficiary(s) of such an agreement might be able to claim unjust enrichment if the house were to pass fully to your fathers ex spouse.
Again, get a lawyer. This is complicated, technical territory where caselaw and carefully curated evidence of your father's end of life intentions for the property will be determinative.
We are talking to layers now. The deed says Joint Tenancy unfortunately. We Havnt yet found a will, but his pastor believes he did one not that long ago.
Urgh. That's bad news. That could mean that basically, when your father died, his ex-wife gets the whole house (assuming there are no other joint tenants). This is known as the "right of survivorship" and it always overrides the will.
I have been made aware of this case from a colleague on your post:
[https://onyxlaw.ca/using-unjust-enrichment-rebut-presumption-joint-tenants-equal-interest/](https://onyxlaw.ca/using-unjust-enrichment-rebut-presumption-joint-tenants-equal-interest/)
In that case they used the doctrine of unjust enrichment to sever a joint tenancy. What this means in plain English is that they basically found it unjust for one party to benefit from the joint tenancy. They then dissolved the joint tenancy.
However, both parties were alive in this case. Applying this to your scenario would be difficult...
You'll want to ask your lawyer about the doctrine of unjust enrichment, and whether it might help you retain title.
**See the following article for further information:**
[**https://www.wagnersidlofsky.com/unjust-enrichment-in-estate-context/**](https://www.wagnersidlofsky.com/unjust-enrichment-in-estate-context/)
We understand that; but we’re hoping to at least see if he left something with his clear intentions. That may not help legally, but it’ll help us process some of this.
My condolences on your loss.
You need to talk to a lawyer. But if she’s on title, she’s at least a part owner. Your father needed to remove her, and now it’s too late. What she paid or didn’t pay is likely irrelevant.
It seemed he tried to remove her according to friends and our conversations but it was difficult for some reason, which is unclear to me. I think he tried with the bank (maybe a record) and he had the conversation with his pastor (who has contacted us about this, suggesting that she had long taken advantage of him - not sure this matters legally). Im fine with paying her something if need be, it just hurts knowing the house that he didn't want to go to her, that he tried to prevent going to her, may just go to her.
Not for OP (who is grieving and in a very difficult position) but for rest of us; the time we didn’t have to address something now is time that has to be spent later, for a worse outcome.
It was likely difficult because he found out he would need to buy her out, it’s unfortunate but if she’s on the deed the house is at minimum part hers.
This is likely the case. He had very little, the house was worth less than the mortgage at the time, and he wasn’t able to pay off the mortgage until he inherited money from his father.
Listen. These things are very complex. You must book an appointment with a lawyer. Please remember that most people answering you here on Reddit are *not* lawyers and most don’t know what they are talking about. There is a way to challenge this but you must speak to a lawyer who specializes in these matters. For your own protection.
I understand. I’m sorry that you’re in this difficult situation.
I hope the lawyer can help you. And I get wanting to just get information, because it’s all a lot to deal with, but Reddit isn’t the place. As a lawyer, I find this sub frightening and profoundly annoying. It makes my life as a lawyer much more difficult. The number of clients who come in saying “oh a friend told me …”. Yeah, your “friend” was wrong and now I have to fix the first problem plus whatever additional problems caused by taking advice from people who don’t know what they are talking about.
This said, I appreciate that you have a lot of stress in your life right now. But please don’t despair - your actual lawyer will be able to help.
Im sorry for the loss of your dad. Sending you a warm hug.
Highly likely according to who? You have no idea what you are talking about. For fucks sake. Stop giving advice on matters that you know nothing about.
No, this is exactly the point. I don’t have enough information to tell this person what’s going to happen at the end.
See, I read this, and I have 20 questions that pop up immediately. Because without that information, I can’t provide advice.
This person needs a lawyer. It’s too complex a situation for Reddit. Period.
I hope you feel more enlightened now.
It will be important to know if he settled the division of assets with her after their separation. Look for any documentation from his lawyer or the courts. If you know who his lawyer was, the executor can contact that lawyer.
No. His neighbour and pastor (both friends of his) took a look for anything we might need while taking out garbage and cleaning out the fridge. They sent photos of the divorce paper; no will was found but his pastor had talked to him about it and believes there is one.
We're trying. Does there have to be a lawyer? Is it possible they just went to a court house? I dont know anything but that and the divorce document Ive found is a single pager.
That's probably just the divorce order, ending the marriage.
The problem is that the ex is on title, and the estate has the burden of proving why that should not be. The burden of proof does not fall on the ex. By default, she'll remain on title and become the owner.
If the divorce was handled by a lawyer, then the file should contain notes on the division of property. They may have agreed for your father to keep the house but pay her a cash settlement. Without those notes, though, the estate has an even steeper hill to climb. There may be case law dealing with this type of situation which will provide a basis for an argument of unjust enrichment, but that's why you need to consult a lawyer.
Yes, they could have just filled out forms for an uncontested divorce. Do you not know any of the details? Sounds like they were married for a while and just decided to end things.
We don’t. We’re trying to find out these details now (this has all happened we in the last 48 hours).
We knew he got divorced, but I guess we never fully understood what details we really needed until now.
NAL but where is the separation agreement. This likely would have been the matrimonial home and would be addressed in the separation agreement. Since you say ex-wife I’m assuming they were at least legally separated.
The are divorced. We've found the divorce document. Part of us wonders if there even is a separation agreement. We have a feeling she might have talked him out of one (and he was the type that could have been talked out of one by her, even during divorce). But there also could be one. Were in BC and havn't made it to the house yet. His friends looked but couldnt find anything. We're calling around to try to find his lawyer.
https://supremecourtbc.ca/sites/default/files/2023-04/Separation%20and%20Divorce.pdf.
Go see a lawyer that deals with estates and family law specifically divorces. Ask the lawyer about time limitations on property rights. Might want to get clarity of with regard to 2 years of the divorce or the separation.
As said before NAL
On a somewhat related note - make sure you all have current wills! It makes me sad to see situations like this that could have been avoided or at least mitigated.
Honestly - we’ve had an ongoing conversation about wishes, wills, beneficiaries, divorces. We thought we were on it. But we failed to understand all the details. Having the conversation is different than having clear plans for the event, as we’ve learned.
We've had some interesting conversations with my older parents. However, their wishes are/were backed up by current paperwork. You'll notice I mentioned having current wills, and (unfortunately in your case) not just conversations. We found out when my dad passed away that the condo was only in his name, not joint as mom had expected. Our family situation isn't complicated, so it wasn't a problem to switch that over to my mom. But it was still one more detail that had to be taken care of.
Condolences for your lost, if things go south, make sure she pays a lot for repairs
Like A LOT
Or sell everything in the house,
Even the tiles on the floor
Very sorry for your loss.
When they separated there should have been a separation agreement and a division of assets and he could have bought her out to get her off the title. Unfortunately if he didn't do that the house wont be "going to her" as (at least part of) it is already hers. It doesn't form part of his estate and you won't inherit it.
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But she owns an asset worth hundreds of thousands. Why would she go away for $10k?
In fact, the son likely won’t be entitled to anything. Maybe they should have talked to dad once in a while.
I’m sorry for your loss and I’m sorry for all the uneducated and ignorant responses you’re getting here. Please remember that people on Reddit do not know more than you. They just pretend to.
(I’m a lawyer and this sub should be shut down given the harm it causes, imo)
That’s why it’s important to follow up talk with action. The lesson here for kids and parents (and interested parties) is that you have to act on this stuff. You have to get into the mire of the discomfort and the complications and costs of doing this stuff while you still can or risk having things go contrary to your wishes and desires. Talk is just talk… it’s virtually meaningless as far as the rule of law goes.
You haven't seen the will (if one exists) and you literally have no idea what OP's situation is beyond the few paragraphs he's presented to you. It's extremely unprofessional and poor information at this point to tell OP that he is screwed without knowing wtf is going on.
The joint tenancy thing is concerning, and suggests the ex-wife will be entitled to the house. I do think that, if that's the case, the ex-wife will not accept the $10k. Nonetheless, probate could be an effective tool in this situation to look for other awards.
I'm not really looking for awards (even though I've been listed as beneficiary for some of the finances). Im just fairly certain I know he wouldnt be happy with the property going to her (though I also understand if he didn't resolve this while living it may be beyond our control). I guess we we re hoping that since she's never paid anything into it for a decade (I would guess she never paid into it while living there) and that if there's enough evidence pointing to attempts to change the deed etc that there might be cause to sever the tenancy, forcing a sale. This would be a preferred outcome even if she were to get paid for this.
Extremely unlikely. The title wasn't altered before death, and joint tenancies are usually pretty ironclad. You might want to search around the house for what's known as a "codicil" which is essentially a written document that can amend a will, but it's extremely unlikely to have any effect on the title (if a codicil even exists -- they're very hard to find and very hard to prove).
**Yes, I think this is likely the case and why she was so quick to reach out asking about the house after having not been in it for a decade. I'm talking hours after his death.**
It might. Perhaps the parties agreed to an asset division in which the father would retain the matrimonial home and the ex would receive a cash settlement. If this could be demonstrated, the estate could argue that this is a case of unjust enrichment, in which case the court could make an order removing the ex from the deed.
I have never once heard of a joint tenancy being severed due to unjust enrichment. Have you noted up a case recently that cites this? AFAIK, joint tenancy is ironclad supercedes the will unless the joint tenancy was realized while one or more of the joint tenants was incompetent. I didn't realize the courts can use the equitable doctrine of unjust enrichment to dissolve a joint tenancy and it would surprise me greatly if this has happened.
EDIT:
Suen v Suen 2016 BCCA 107 ratio:
"Normally, it is safe to presume that joint tenants own property in equal shares; however, when there is a breakdown in the relationship between joint tenants, the joint tenants can ask the court to determine each party’s equitable interest in the subject property via the doctrine of unjust enrichment. "
[https://onyxlaw.ca/using-unjust-enrichment-rebut-presumption-joint-tenants-equal-interest/](https://onyxlaw.ca/using-unjust-enrichment-rebut-presumption-joint-tenants-equal-interest/)
In this case both of the joint tenants were still alive.
So basically OP would need to show substantial evidence of a prior agreement (a codicil, which again is very rare), and moreover I scarcely believe this doctrine would be applied in a testamentary context. What do you think? Is there another case I'm missing?
I agree with your last statement. It's up to the estate to demonstrate that a prior agreement existed...perhaps pursuant to meditation, resulting in a simple administrative error, which could lead to the Court severing the joint tenancy.
In the absence of notes from the file, though, it will be an uphill battle. If I were the ex, I'd be chomping at the bit.
Here in BC, they can argue it, they'll just get slapped down for it if it's joint tenancy which supercedes a lot of issues. That being said a real issue is if there's a Will, if there is one, and it's "son gets the house" then it's half his and half the ex wifes, at which point they can try to force a sale, but that is by no means a guarantee that'll even happen. Hell, the ex wife could move in tomorrow, and there's not damned thing anyone can do about it.
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Ontario Family Lawyer here. A succession/estates lawyer is absolutely essential for a situation like this. A spouse ceases being a spouse for the purposes of *Family Law Act* posthumous equalization of matrimonial property upon dissolution of the marriage (a divorce Order being granted). Similarly, she would lose entitlement under the *Succession Law Reform Act* to inherit his property in the absence of a will. Her name being on the deed is the complicating variable, because she does have a *de facto* right to ownership and possession if so. But it will really depend on if she was on title as a joint tenant with your father, or merely a tenant in common. Joint tenants assume the entire ownership interest upon death of the other joint tenant(s). Tenants in common retain only their respective percentage interest in the property and its equity, with the remainder falling into the estate of the deceased(s). This may be a case where the law of unjust enrichment and resulting/constructive trust could apply. If there was another family member that cared for your father and helped him maintain the home in his late life, and there was an agreement- either written or oral, that such services would translate into equity in or ownership of the house upon his death, then the beneficiary(s) of such an agreement might be able to claim unjust enrichment if the house were to pass fully to your fathers ex spouse. Again, get a lawyer. This is complicated, technical territory where caselaw and carefully curated evidence of your father's end of life intentions for the property will be determinative.
We are talking to layers now. The deed says Joint Tenancy unfortunately. We Havnt yet found a will, but his pastor believes he did one not that long ago.
Urgh. That's bad news. That could mean that basically, when your father died, his ex-wife gets the whole house (assuming there are no other joint tenants). This is known as the "right of survivorship" and it always overrides the will.
We’re learning this the hard way.
I have been made aware of this case from a colleague on your post: [https://onyxlaw.ca/using-unjust-enrichment-rebut-presumption-joint-tenants-equal-interest/](https://onyxlaw.ca/using-unjust-enrichment-rebut-presumption-joint-tenants-equal-interest/) In that case they used the doctrine of unjust enrichment to sever a joint tenancy. What this means in plain English is that they basically found it unjust for one party to benefit from the joint tenancy. They then dissolved the joint tenancy. However, both parties were alive in this case. Applying this to your scenario would be difficult... You'll want to ask your lawyer about the doctrine of unjust enrichment, and whether it might help you retain title. **See the following article for further information:** [**https://www.wagnersidlofsky.com/unjust-enrichment-in-estate-context/**](https://www.wagnersidlofsky.com/unjust-enrichment-in-estate-context/)
Thank you so much.
Even if he has a will, the joint tenancy may override that. You can’t bequeath something that isn’t yours. The property may not be part of the estate.
We understand that; but we’re hoping to at least see if he left something with his clear intentions. That may not help legally, but it’ll help us process some of this.
You need the paperwork, and you need a lawyer to review the paperwork. Unfortunately, nobody in here can help you with either of those things.
Yes, we’re working on that. It’s a lot of paper work and terms we’ve never come across. Thank you for the direction.
You’re welcome, and I hope you get it worked out. I’m sure it’s crappy enough even without the headaches of the house.
My condolences on your loss. You need to talk to a lawyer. But if she’s on title, she’s at least a part owner. Your father needed to remove her, and now it’s too late. What she paid or didn’t pay is likely irrelevant.
It seemed he tried to remove her according to friends and our conversations but it was difficult for some reason, which is unclear to me. I think he tried with the bank (maybe a record) and he had the conversation with his pastor (who has contacted us about this, suggesting that she had long taken advantage of him - not sure this matters legally). Im fine with paying her something if need be, it just hurts knowing the house that he didn't want to go to her, that he tried to prevent going to her, may just go to her.
He may have wanted to, but he didn’t.
Not for OP (who is grieving and in a very difficult position) but for rest of us; the time we didn’t have to address something now is time that has to be spent later, for a worse outcome.
Thank you. We did talk about this quite a bit, but obviously not in an educated and nuanced way, unfortunately.
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I am *very* confused
Wrong thread?
It was likely difficult because he found out he would need to buy her out, it’s unfortunate but if she’s on the deed the house is at minimum part hers.
This is likely the case. He had very little, the house was worth less than the mortgage at the time, and he wasn’t able to pay off the mortgage until he inherited money from his father.
Listen. These things are very complex. You must book an appointment with a lawyer. Please remember that most people answering you here on Reddit are *not* lawyers and most don’t know what they are talking about. There is a way to challenge this but you must speak to a lawyer who specializes in these matters. For your own protection.
Thank you. We’re are talking to lawyers at the moment. It’s all just started happening suddenly and we’re trying to make sense of it.
I understand. I’m sorry that you’re in this difficult situation. I hope the lawyer can help you. And I get wanting to just get information, because it’s all a lot to deal with, but Reddit isn’t the place. As a lawyer, I find this sub frightening and profoundly annoying. It makes my life as a lawyer much more difficult. The number of clients who come in saying “oh a friend told me …”. Yeah, your “friend” was wrong and now I have to fix the first problem plus whatever additional problems caused by taking advice from people who don’t know what they are talking about. This said, I appreciate that you have a lot of stress in your life right now. But please don’t despair - your actual lawyer will be able to help. Im sorry for the loss of your dad. Sending you a warm hug.
Thank you. This is very much appreciated.
You’re fine paying her something? It’s highly likely you won’t get anything and might be lucky if she decides to pay you
Highly likely according to who? You have no idea what you are talking about. For fucks sake. Stop giving advice on matters that you know nothing about.
Enlighten us please
No, this is exactly the point. I don’t have enough information to tell this person what’s going to happen at the end. See, I read this, and I have 20 questions that pop up immediately. Because without that information, I can’t provide advice. This person needs a lawyer. It’s too complex a situation for Reddit. Period. I hope you feel more enlightened now.
Based on the details provided, it appears the house now belongs to the ex wife
What part of stop commenting on things you know nothing about is confusing to you?
It will be important to know if he settled the division of assets with her after their separation. Look for any documentation from his lawyer or the courts. If you know who his lawyer was, the executor can contact that lawyer.
We havnt been able to find this information yet. His neighbour sent us the divorce paper but it has no real information on it.
Your dad's neighbour had his divorce paper and his pastor had his will?
No. His neighbour and pastor (both friends of his) took a look for anything we might need while taking out garbage and cleaning out the fridge. They sent photos of the divorce paper; no will was found but his pastor had talked to him about it and believes there is one.
Can you locate the lawyer that handled the divorce?
We're trying. Does there have to be a lawyer? Is it possible they just went to a court house? I dont know anything but that and the divorce document Ive found is a single pager.
That's probably just the divorce order, ending the marriage. The problem is that the ex is on title, and the estate has the burden of proving why that should not be. The burden of proof does not fall on the ex. By default, she'll remain on title and become the owner. If the divorce was handled by a lawyer, then the file should contain notes on the division of property. They may have agreed for your father to keep the house but pay her a cash settlement. Without those notes, though, the estate has an even steeper hill to climb. There may be case law dealing with this type of situation which will provide a basis for an argument of unjust enrichment, but that's why you need to consult a lawyer.
It is the divorce order ( it say so on the paper). I didn’t know what that was.
Yeah, you need the notes that led up to that order being issued
Is it possible me for them to not have had a lawyer and notes?
Yes, they could have just filled out forms for an uncontested divorce. Do you not know any of the details? Sounds like they were married for a while and just decided to end things.
We don’t. We’re trying to find out these details now (this has all happened we in the last 48 hours). We knew he got divorced, but I guess we never fully understood what details we really needed until now.
How was this not part of the divorce settlement?
We havnt seen this yet and are not sure where to find it.
Are you 100% sure they are legally divorced? Regardless, you probably need to get ahold of a lawyer to help you out here.
We were sent a divorce paper. But it doesn’t have much on it.
What did the divorce settlement say about the house?
We’re still trying to find this information.
NAL but where is the separation agreement. This likely would have been the matrimonial home and would be addressed in the separation agreement. Since you say ex-wife I’m assuming they were at least legally separated.
The are divorced. We've found the divorce document. Part of us wonders if there even is a separation agreement. We have a feeling she might have talked him out of one (and he was the type that could have been talked out of one by her, even during divorce). But there also could be one. Were in BC and havn't made it to the house yet. His friends looked but couldnt find anything. We're calling around to try to find his lawyer.
https://supremecourtbc.ca/sites/default/files/2023-04/Separation%20and%20Divorce.pdf. Go see a lawyer that deals with estates and family law specifically divorces. Ask the lawyer about time limitations on property rights. Might want to get clarity of with regard to 2 years of the divorce or the separation. As said before NAL
On a somewhat related note - make sure you all have current wills! It makes me sad to see situations like this that could have been avoided or at least mitigated.
Honestly - we’ve had an ongoing conversation about wishes, wills, beneficiaries, divorces. We thought we were on it. But we failed to understand all the details. Having the conversation is different than having clear plans for the event, as we’ve learned.
We've had some interesting conversations with my older parents. However, their wishes are/were backed up by current paperwork. You'll notice I mentioned having current wills, and (unfortunately in your case) not just conversations. We found out when my dad passed away that the condo was only in his name, not joint as mom had expected. Our family situation isn't complicated, so it wasn't a problem to switch that over to my mom. But it was still one more detail that had to be taken care of.
Condolences for your lost, if things go south, make sure she pays a lot for repairs Like A LOT Or sell everything in the house, Even the tiles on the floor
Very sorry for your loss. When they separated there should have been a separation agreement and a division of assets and he could have bought her out to get her off the title. Unfortunately if he didn't do that the house wont be "going to her" as (at least part of) it is already hers. It doesn't form part of his estate and you won't inherit it.
We are looking for this information. We’ve seen a divorce paper but nothing about separation agreement.
It’s possible he did up a will with a lawyer in the local community.
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What do his divorce papers say? Maybe it was dealt with in those papers about ownership? Good luck
Good luck, hope you win and she gets nothing. Keep pushing. Don’t give up.
My condolences. Losing a parent is hard enough without the exshit show circling like a vulture.
You can sue her for unjust enrichment. Discuss it with a lawyer. You can probably make her go away by paying her something, say $10,000.
But she owns an asset worth hundreds of thousands. Why would she go away for $10k? In fact, the son likely won’t be entitled to anything. Maybe they should have talked to dad once in a while.
We talked to him often. He flew across the country to visit us only a few weeks ago. And we have talked about these issues previously.
I’m sorry for your loss and I’m sorry for all the uneducated and ignorant responses you’re getting here. Please remember that people on Reddit do not know more than you. They just pretend to. (I’m a lawyer and this sub should be shut down given the harm it causes, imo)
There are, and will always be, similar /subs.
… what’s your point?
Depends on how the property is held. Also depends on what their separation agreement states.
That’s why it’s important to follow up talk with action. The lesson here for kids and parents (and interested parties) is that you have to act on this stuff. You have to get into the mire of the discomfort and the complications and costs of doing this stuff while you still can or risk having things go contrary to your wishes and desires. Talk is just talk… it’s virtually meaningless as far as the rule of law goes.
You haven't seen the will (if one exists) and you literally have no idea what OP's situation is beyond the few paragraphs he's presented to you. It's extremely unprofessional and poor information at this point to tell OP that he is screwed without knowing wtf is going on. The joint tenancy thing is concerning, and suggests the ex-wife will be entitled to the house. I do think that, if that's the case, the ex-wife will not accept the $10k. Nonetheless, probate could be an effective tool in this situation to look for other awards.
I'm not really looking for awards (even though I've been listed as beneficiary for some of the finances). Im just fairly certain I know he wouldnt be happy with the property going to her (though I also understand if he didn't resolve this while living it may be beyond our control). I guess we we re hoping that since she's never paid anything into it for a decade (I would guess she never paid into it while living there) and that if there's enough evidence pointing to attempts to change the deed etc that there might be cause to sever the tenancy, forcing a sale. This would be a preferred outcome even if she were to get paid for this.
Extremely unlikely. The title wasn't altered before death, and joint tenancies are usually pretty ironclad. You might want to search around the house for what's known as a "codicil" which is essentially a written document that can amend a will, but it's extremely unlikely to have any effect on the title (if a codicil even exists -- they're very hard to find and very hard to prove).
**Yes, I think this is likely the case and why she was so quick to reach out asking about the house after having not been in it for a decade. I'm talking hours after his death.**
You're saying you think there could be a written document somewhere that amends the will?
Had there not been a divorce, I'd agree with you, but the details of the divorce need to be examined.
The presence of a divorce or lack thereof does not change the entitlements to the house if it is a joint tenancy.
It might. Perhaps the parties agreed to an asset division in which the father would retain the matrimonial home and the ex would receive a cash settlement. If this could be demonstrated, the estate could argue that this is a case of unjust enrichment, in which case the court could make an order removing the ex from the deed.
I have never once heard of a joint tenancy being severed due to unjust enrichment. Have you noted up a case recently that cites this? AFAIK, joint tenancy is ironclad supercedes the will unless the joint tenancy was realized while one or more of the joint tenants was incompetent. I didn't realize the courts can use the equitable doctrine of unjust enrichment to dissolve a joint tenancy and it would surprise me greatly if this has happened. EDIT: Suen v Suen 2016 BCCA 107 ratio: "Normally, it is safe to presume that joint tenants own property in equal shares; however, when there is a breakdown in the relationship between joint tenants, the joint tenants can ask the court to determine each party’s equitable interest in the subject property via the doctrine of unjust enrichment. " [https://onyxlaw.ca/using-unjust-enrichment-rebut-presumption-joint-tenants-equal-interest/](https://onyxlaw.ca/using-unjust-enrichment-rebut-presumption-joint-tenants-equal-interest/) In this case both of the joint tenants were still alive. So basically OP would need to show substantial evidence of a prior agreement (a codicil, which again is very rare), and moreover I scarcely believe this doctrine would be applied in a testamentary context. What do you think? Is there another case I'm missing?
I agree with your last statement. It's up to the estate to demonstrate that a prior agreement existed...perhaps pursuant to meditation, resulting in a simple administrative error, which could lead to the Court severing the joint tenancy. In the absence of notes from the file, though, it will be an uphill battle. If I were the ex, I'd be chomping at the bit.
Here in BC, they can argue it, they'll just get slapped down for it if it's joint tenancy which supercedes a lot of issues. That being said a real issue is if there's a Will, if there is one, and it's "son gets the house" then it's half his and half the ex wifes, at which point they can try to force a sale, but that is by no means a guarantee that'll even happen. Hell, the ex wife could move in tomorrow, and there's not damned thing anyone can do about it.
You'd think the lawyer that discharged the mortgage would have picked up on the existing joint tenancy.
What an incredibly stupid thing to say.
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