Wills and the importance of severing a Joint Tenancy

A question commonly asked by your Solicitor when you purchase a new property is whether you would like to hold the beneficial ownership of the property as joint tenants or as tenants in common (and see my colleague’s note on this at https://www.meaby.co.uk/joint-tenant-tenants-common/).  In summary, holding it as joint tenants means that, if one of you were to die, your share would automatically pass to the surviving owner under the right of survivorship.  If you wanted more control over the ultimate destination of your share, you should consider holding the property together as tenants in common.

Should you make a will, your Solicitor will consider any property that you own.  If a joint tenant makes a will that purports to leave their interest in the property to a beneficiary who is not their co-owner, the disposition will be ineffective.  In order to avoid the survivorship laws described, you would need to ensure that you own the property as tenants in common.

So what can a joint tenant in this situation do?  It is possible to sever your joint tenancy, converting the equitable estate into a tenancy in common.  A joint tenancy can be severed in a number of ways, although the most common is through mutual agreement. If one party will not agree to the severance, the other party can unilaterally sever the joint tenancy by serving notice on their co-owner of their intention to sever, without any need for consent or consultation.  A “Form A” restriction should then be entered at the Land Registry to demonstrate that the property is held as tenants in common following the severance.

The co-owner can then be safe in the knowledge that their now distinct share in the property will pass as they wish under the terms of their will.

For any assistance on wills and lifetime planning, please contact Laura Sentkovsky who is a Solicitor in the Private Client team at Meaby&Co, on 0207 703 5034 or at laura@meaby.co.uk.

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