Plaintiff purchased a joint tenant title of real estate. Plaintiff learned after speaking to her attorney that her interest in the property would automatically go to her husband upon her death. She sought to change this arrangement so she could create a will for where her interest in the property would go. Her attorney prepared a deed that had plaintiff grant herself ½ interest in the property and also stated that the purpose of the deed was to terminate the joint interest between herself and her husband. Plaintiff died a few days after executing the deed. The trial court refused to recognize the deed and held the property in joint tenancy.
Whether Plaintiff, “now deceased, unilaterally terminated a joint tenancy by conveying her interest from herself as joint tenant to herself as tenant in common.”
Yes, the joint tenancy was lawfully terminated. At common law plaintiff very well may convey interest in her property during her lifetime. In breaking the joint tenancy, the plaintiff seeks to use the very same method that is usually done for wife and husband who seek to become joint tenants: the creation of a third party to whom the original owner temporarily gives the property, who then conveys the property to both parties under the principles of unity.
Insodoing the Plaintiff seeks to be both the grantor and grantee in their “strawman” transaction. The court holds that this is allowed. “Common sense as well as legal efficiency dictate that a joint tenant should be able to accomplish directly what he or she could otherwise achieve indirectly by use of elaborate legal fictions…”
The court defends it decision by stating that they do not believe this ruling gives new rights to joint tenants who wish to escape their joint tenancy. “A universal right of each joint tenant is the power to effect a severance and destroy the right of survivorship by conveyance of his or her joint tenancy interest to another person. “If an indestructible right of survivorship is desired – that is, one which may not be destroyed by one tenant – that may be accomplished by creating a joint life estate with a contingent remainder in fee to the survivor; a tenancy in common in simple fee with an executor interest in the survivor; a tenancy in common in simple fee with executor interest in the survivor; or a fee simple to take effect in possession in the future.”