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17 February 2022 | Comment | Article by Kieran Forsyth

Hugh James acts for successful parties in establishing severance of joint tenancy

Associate, Kieran Forsyth, and Senior Associate, Sarah Bolt, in our Contested Wills, Trusts and Estates Team represented the successful claimants in the reported decision of Dunbabin & Ors. v. Dunbabin [2022] EWHC 241 (Ch) in which the court had to consider if a joint tenancy of a property had been severed, whether by notice, mutual agreement or course of conduct.

The case was heard before HHJ Matthews in the Bristol High Court.

The Background

Angela and John Dunbabin were married for more than 60 years, and had four sons, Michael, Timothy, Simon and Adam. In 1983 they bought a property known as 29 Beverley Place, Springfield, Milton Keynes, Buckinghamshire (‘the Property’). Absent an express declaration, the presumption was that the property was held by them as joint tenants in equity (see Stack v. Dowden [2007] AC 432 at [68]). The Property was unregistered and remained so until 2021.

Angela and John then made a series of mirror wills in 2003 and then, again, in 2008. Those wills purported to deal with Angela and John’s respective shares of the Property and, broadly, provided for the surviving spouse to remain in the Property for life and for the Property, or such share of the Property as belonged to either of Angela and John, to pass to the four sons in equal shares.

Angela died in 2016 and, in 2019, John then made a new will leaving 75% of his estate to Simon, with the remaining 25% split between the remaining three sons.

The Issue

The main issue therefore related to the underlying beneficial interests which each of John and Angela had in the Property.

Adam, Timothy and Michael’s personal representatives (Michael having passed away before proceedings were brought), represented by Hugh James, argued that their parents, in making their 2003 and 2008 wills, had acted so as to sever the beneficial joint tenancy over the Property so that thereafter they held the legal title as joint tenants upon trust for themselves as tenants in common in equal shares. They asserted that their parents had acted on that basis.

The result of that would be that, on Angela’s death, her half share devolved according to her own will, instead of passing by survivorship to John. That would mean that her half share was split equally between the four sons.

They also asserted that, in any event, there was evidence that notice of severance had been served such that, come what may, the joint tenancy had been severed.

Simon argued that there was no severance of the beneficial joint tenancy and that the entire beneficial interest in the property passed to John on Angela’s death and, in turn, that Simon was entitled to 75% of the value of the Property under John’s later 2019 will.

The Decision

Counsel, Alex Troup, instructed by Hugh James put forward submissions as to why it was clear that the joint tenancy had been severed on all three grounds.

The will writer who had prepared the 2003 and 2008 wills also gave evidence that he would not have prepared the wills in the terms he had if Angela and John had not severed the joint tenancy.

Ultimately, HHJ Matthews held that the joint tenancy had been severed on all three grounds, namely:

By Notice

Describing the claimants’ evidence as “cogent in support of the proposition that Angela and John did indeed sign a notice of severance” he held that on the balance of probabilities a notice of severance was served, despite the parties being unable to locate it given that “it is just one sheet of paper, and can have become misfiled or even accidentally destroyed”.

By Agreement

Here HHJ Matthews, citing Re Wilford's Estate (1879) 11 Ch D 267, held that the fact that John and Angela had made mirror wills in 2003 and, later, in 2008, that John’s 2019 will spoke of “my share of the [Property]” and an explanatory letter accompanying the mirror wills all pointed to an agreement to sever the joint tenancy.

By Course of Conduct

Highlighting that an argument on this ground required mutuality HHJ Matthews concluded that “the evidence satisfies me that there was a course of conduct (in particular, the making of the mirror wills) which showed that one party (indeed, each party) made clear to the other that that one desired that their property should no longer be held jointly but be held in common”.

The Impact

Dunbabin affirms the position at law that while, absent a declaration of trust, there is a legal presumption that two or more parties who purchase property together do so as beneficial joint tenants in equity such that on the death of each co-owner their share passes to the survivor, and despite the absence of a formal notice of severance, it is still possible to demonstrate that such a severance took place.

As with all such cases, each case turns on its own facts. Here, the key evidence was the couple’s shared decision to make mirror wills each seeking to leave a distinct share of the Property to their sons, coupled with the evidence of the will writer about the likely advice around those wills.

For more information or advice, please visit our Contested wills, trusts & estates page.

Disclaimer: The information on the Hugh James website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. If you would like to ensure the commentary reflects current legislation, case law or best practice, please contact the blog author.

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