Brief Fact Summary. In this case decedent Catherine Vadney executed a deed conveying her house to herself and her son, Peter Vadney, and the deed failed to describe the type of tenancy created and contained no survivorship language. When decedent’s estate was probated, Peter Vadney, executor, left the house out of the listing of assets of the decedent, and the decedent’s other three children contended that the deed created a tenancy in common which would mean that her one-half interest would pass to all her children, instead of just Peter, who would take the entire property under survivorship.
Synopsis of Rule of Law. Under the statutory scheme in New York, a disposition of property to two or more persons is presumed to create a tenancy in common, unless it can be shown clear and convincing evidence that the intent of the grantor was to create a joint tenancy with right of survivorship.
To overcome the strong presumption that a tenancy in common was created, a party must establish by clear and convincing evidence that a joint tenancy was intended to be created rather than a tenancy in common.View Full Point of Law
Issue. What is the effect of the deed on the interests of the Petitioner and the Respondents, if any?
Held. The deed created a joint tenancy with right of survivorship. Affirmed.
The statutory scheme provides that a grant of property to two or more persons will create a tenancy in common, “unless expressly declared to be a joint tenancy.” Of course, this deed did not express any type of tenancy or right (or non-right) of survivorship. The Court found that this statute created a presumption in favor of tenancy in common which could be overcome only upon the showing of clear and convincing evidence of an intent by the grantor to create a joint tenancy.
The Petitioner, Peter Vadney, had met the burden of showing that his mother intended to create a joint tenancy with right of survivorship as between them in the house. The attorney who drafted the deed indicated that he had received instructions from the decedent to create such an interest and that he omitted such language in the deed through his own oversight. The drafting attorney produced handwritten notes which indicated the decedent’s intent. Also, the attorney’s wife, who was present during the execution of the deed testified that the decedent had indicated her desire to leave the house to Peter, the Petitioner.
The Court found that unless the decedent specifically meant to exclude the house from the assets which would pass under her estate, she would not have needed to execute the deed at all.
Discussion. This case illustrates the necessity of carefulness in drafting documents. Attorneys drafting deeds and wills must be careful to effectuate the intent of the grantor/ testator, while at the same time conforming the language of the instrument to appropriate legal standards.