Summary

The fact that a wife had made a will which appeared to deal with her share of the matrimonial home was not enough to give rise to an inference that the joint tenancy of the property had been severed.

Facts

The claimant (C) brought an action for a declaration that the entire interest in a property owned by her deceased parents passed to her under her mother's will. The property had been purchased by C's father (T) and mother (G) in 1967 as joint tenants. That same year T and G made wills. G's will stated that T was to have a life interest in her share of the property and that it would pass to their other daughter (M) on T's death. T's will gave G a life interest in the whole of his residue and set up trusts in favour of M and C and their children on G's death. Both G and T made further wills in similar terms prior to their deaths. T died in 1980, as did M. G died in 2000. M's daughter (D) contended that the making of the wills in 1967, in which both T and G had purported to deal with their own shares in the property, had given rise to a severance of the joint tenancy, so that T's share of the property had passed to M and on her death to D.

Held

In order to prove a severance of the joint tenancy, D had to show that T or G had acted on their own share in such a way as to create a severance, or that there had been a mutual agreement, or that there had been a course of dealings amounting to a severance, Williams v Hensman 70 ER 862 QB applied. The first two limbs clearly did not apply, and the third required a finding that T and G had had a common intention to treat their interests in the property as severed or in a manner that was inconsistent with continued joint ownership, Burgess v Rawnsley (1975) Ch 429 CA (Civ Div) applied. G's will clearly was inconsistent with a joint tenancy as it gave a life interest in her share to T. However, T's will was more ambiguous as the life interest was in the residue as a whole and the trusts were not dependent on there being no joint tenancy. There was no evidence in respect of the making of the wills or of T and G's intentions at the time capable of giving rise to an inference of severance.

Judgment for claimant