(concurring) — While I concur with the ultimate finding of the majority, that Richard and Margaret hold the Snohomish County property as tenants in common, I object to the circuitous and sometimes strained analysis used to achieve that result.
The gift of property to the brothers from their father failed to create a joint tenancy between the community and Richard. To create a joint tenancy under RCW 64.28.010 requires a "written instrument, which instrument shall expressly declare the interest created to be a joint tenancy." A joint tenancy of a marital community, however, cannot be formed by the unilateral declaration of the transferor. In re Estate of Olson, 87 Wn.2d 855, 859, 557 P.2d 302 (1976). Rather, there must be "at least some clear indication by the marital community that the property subject to joint tenancy is intended by them to be held as such." In re Estate of Olson, supra at 859. Accord, Rogers Walla Walla, Inc. v. Ballard, 16 Wn. App. 81, 89, 553 P.2d 1372 (1976), review *416denied, 88 Wn.2d 1004 (1977); In re Estate of Patton, 6 Wn. App. 464, 481, 494 P.2d 238, review denied, 80 Wn.2d 1009 (1972).
Margaret and Edward Lyon clearly intended to hold all property as a community. In 1962, and again in 1979, they had voluntarily signed "three-pronged" community property agreements. Such agreements provide a simple, certain way of disposing of community property upon death of either spouse. Neeley v. Lockton, 63 Wn.2d 929, 389 P.2d 909 (1964) (community property agreement controlled inconsistent pension plan beneficiary designation). Hence, the preexisting community property agreement precluded the creation of a joint tenancy.
The four unities of time, title, possession, and interest, are also essential to create a joint tenancy. In re Estate of Oney, 31 Wn. App. 325, 328, 641 P.2d 725, review denied, 97 Wn.2d 1023 (1982); Merrick v. Peterson, 25 Wn. App. 248, 606 P.2d 700 (1980). Inconsistencies with the concurrent characterization of community property as a joint tenancy destroy the unity of interest necessary to create a joint tenancy. For instance, joint tenants while living may alienate half of the property, while community property may not be given without the express or implied consent of the other spouse. RCW 26.16.030(2). See Washington State Bar Ass'n, Community Property Deskbook § 47.10 (1977); Lamka, Property — Community Property and Joint Tenancy: Creating Survivorship Rights in Washington — In re Estate of Olson, 87 Wn.2d 855, 577 P.2d 302 (1976), 53 Wash. L. Rev. 557, 566 (1978). Joint tenants have no testamentary control, but either spouse may devise or bequeath by will up to one-half of the community property. RCW 26.16.030(1). Without the unity of interest, the joint tenancy failed and was converted into a tenancy in common. Cf. Merrick v. Peterson, supra at 258 (agreement giving each party a 50 percent interest in the judgment proceeds was a divided interest of the whole). Richard and Margaret *417hold the Snohomish County property as tenants in common due to the failure of the joint tenancy gift.
Brachtenbach, J., concurs with Dolliver, J.