No survivorship right in partnership property's beneficial interest: BC Court of Appeal

A joint tenant failed to prove that beneficial ownership in a partnership property was subject to the right of survivorship upon the other partner’s death, the British Columbia Court of Appeal has found.

In Newhouse v. Garland, 2022 BCCA 276, the appellant and a close friend of her common-law husband jointly invested in a real estate property. After her co-investor died, a dispute arose over the status of the partnership property, valued at around one million dollars.

The appellant claimed that, upon her co-investor’s death, legal and beneficial ownership in the partnership property passed to her as the surviving joint tenant, through the right of survivorship. The son of the deceased, acting as executor of the co-investor’s estate, challenged this.

In a summary trial, the chambers judge made the following findings:

• the appellant’s evidence regarding the parties’ intentions behind the joint tenancy was not credible
• There was no survivorship right in the beneficial interest that the appellant and the deceased held in joint tenancy
• The appellant failed to present evidence rebutting the “strong” presumption that the tenants held in common beneficial interest in the partnership property with no survivorship right.

On appeal, the appellant alleged that the chambers judge wrongly found that the presumption applied and failed to properly consider her evidence.

The BC Court of Appeal found no reason to interfere with the chambers judge’s decision. She correctly applied the standard of proof – namely, a balance of probabilities – to determine that the appellant failed to prove an alleged oral agreement that, upon one partner’s death, the partnership property’s beneficial ownership would pass to the other partner through the right of survivorship.

According to the appellate court, the judge made reasonable factual findings that the evidence supported. The judge did not misapprehend any evidence, did not ignore material evidence, and did not draw inferences unsupported by primary facts.

First, the appellate court ruled that there was no real dispute that the parties intended to enter into a joint tenancy with a survivorship right in the partnership property’s legal interest. However, the issue was whether they also meant to confer a survivorship right in the beneficial interest.

Second, the appellate court held that there was evidence establishing that the appellant and her co-investor never made the alleged oral agreement and that the deceased did not intend to confer on the appellant a survivorship right in the beneficial interest.

Third, the appellate court determined that the judge did not overlook “critical evidence” of family dysfunction.

Lastly, the judge made no errors in exercising her discretion to conduct a summary trial, the appellate court said. Both parties wanted to resolve the matter via summary trial despite knowing that credibility was an issue and had enough opportunities to put their best cases forward.