There are three ways of severing a joint tenancy: (i) an express act, (ii) mutual agreement, or (iii) a course of dealing.

A recent case involved a series of wills by a couple who had been joint Ts. The question was whether those wills had severed the joint tenancy (ie whether the right of survivorship applied – in which case, different beneficiaries would receive the property). The starting point in such a situation is that a will that purports to dispose of an undivided share in a joint tenancy property will not, by itself, be sufficient to sever the joint tenancy (only if there were mutual wills by both joint owners would there be severance). In saying that, in the unreported case of Perkins [2002] it was held that two wills amounted to severance, but this seems to have been on the basis that each testator knew the contents of the other’s will. But, subject to that possible exception, the rule is quite clear: simply leaving the property (or part of it) in a will does not amount to a severance, and a will will neither be an express act or evidence of a mutual agreement. In practice the best argument will be to suggest that it shows a course of dealing (based on other intrinsic evidence that the parties knew of each other’s wills, etc). But, that can be difficult to prove and, indeed, could not be proved in the recent case. Accordingly, there was no act of severance and on the death of the first of the joint tenants, his share has passed to the other joint tenant (and on her death it passed to her beneficiaries).

Thus, the case is a reminder that simply making a will is not sufficient to sever a joint tenancy. Accordingly, if clients buy as joint Ts (rather than tenants in common) then do consider informing them of this at the time of purchase. Carr v Isard [2006] EWHC 2095 (Ch) Source: www.practicallaw.com (subscription service). © Practical Lawyer