Can Right of Survivorship Be Challenged?

Yes, the right of survivorship can be challenged under certain circumstances. Although it is designed to ensure a seamless transfer of property to surviving co-owners, disputes can arise if someone believes the right of survivorship was improperly created or used unfairly. Below are some common grounds for challenging the right of survivorship:

Improper Execution of the Deed

For a valid right of survivorship, the deed must meet specific legal requirements, such as correct language and proper signatures. If the deed lacks clear language indicating the right of survivorship (e.g., "as joint tenants with right of survivorship"), it could be contested, and the property might instead be treated as tenants in common, where no survivorship rights exist. For example, a family member may argue that a joint tenancy was intended to be tenants in common due to ambiguous wording on the deed, potentially invalidating the right of survivorship.

Fraud or Undue Influence

If one co-owner was pressured or misled into creating a joint tenancy with the right of survivorship, a court may set it aside. Claims of undue influence, especially involving vulnerable individuals like the elderly, are a common basis for challenges. For example, an elderly parent may add their caregiver as a joint tenant. Other family members may claim the caregiver used undue influence to gain ownership rights through survivorship.

Mental Incapacity

If the grantor (the person creating the joint tenancy) lacks the mental capacity to understand the implications of adding the right of survivorship, the deed can be challenged. For example, if a person with dementia signs a deed granting someone the right of survivorship, heirs could argue that the grantor did not have the mental capacity to make such a decision.

Claims of Forgery

A right of survivorship can be contested if the deed or any related document was forged. Forgery undermines the validity of the entire joint tenancy agreement. For example, a co-owner claims their signature on the deed was forged to create the right of survivorship. If the forgery is proven, a court will invalidate the deed.

Claims by Creditors or Heirs

Creditors or heirs of the deceased may challenge the right of survivorship, mainly if the deceased co-owner had significant debts or if the transfer impacts their inheritance rights. While survivorship bypasses probate, heirs may argue that the deceased’s share should be part of the estate. For example, the child of a deceased parent disputes the survivorship transfer to a new spouse, claiming the property was intended to be part of the parent’s estate.

Challenging the right of survivorship can be legally complex and requires substantial evidence. An experienced real estate attorney should always be consulted if a challenge arises. An attorney can evaluate the deed, investigate the circumstances of its creation, and help determine whether a challenge has legal merit.

Importance of Legal Guidance

Challenging the right of survivorship is a legally complex process that requires strong evidence. If a dispute arises, consulting an experienced real estate attorney is essential. An attorney can thoroughly review the deed, examine the circumstances of its creation, and assess whether the challenge has legal merit.

Although the right of survivorship is an effective tool for seamless property transfer, improper execution or unclear language can make it susceptible to disputes. Proper legal guidance helps protect ownership rights and ensures the intended transfer is upheld.