Client has come to me after her husband died. His Will contains a life interest in the family home for her. However, the property was still held as joint tenants and it appears from the Will file that we have obtained that the solicitors who made the Will that they didn’t check the title or chase the clients to sign a Severance (although one was provided) so nothing was done with the title.
Does the gift of the life interest lapse and the property pass by survivorship?
Yes, the property passes by survivorship. However, wife can enter into a Deed of Variation in respect of the half share that she has inherited by survivorship, so that the half share passes under the life interest Trust created in husband’s Will.
I Will Solicitors Ltd
If husband and wife made mirror wills at the time (giving each other a life interest in their respective shares of the property) I believe this has been held as a severance by conduct. If that is not the case, the severance can still be effected by a deed of variation.
If they had identical wills, you might want to look at Carr v Isard (2006). While there was insufficient evidence in that case, it did suggest that if both parties make wills together showing an intention to sever, this might amount to severance via a course of dealing.
I recall a case at the tail end of the last century - Woolnough v. Woolnough (if I remember correctly) – in which the court held that the execution of mirror wills was an effective severance of a joint tenancy. However, I understand that decision has been criticised in later cases and not followed. The case to which Andrew refers – Carr v. Isard – suggests that they could be life in that argument.
However, unless a court rules that the mirror wills effectively severed the joint tenancy in the current case, the property passes by survivorship to the surviving joint tenant.
Yes, it is open to the surviving joint tenant to enter into a variation by which they gift the deceased’s notional half share to the intended beneficiary.
However, if the matter cannot be resolved amicably, then it would be appropriate to consider the application of Carr-Glynn v. Frearsons, 1999 where, in a similar situation, the will drafter was held liable and had to compensate the intended, disappointed beneficiary for their loss of the half share of the property. Consideration might be given to contacting the will drafter in any event, as they may be liable for the costs of resolving the situation, even if it can be settled amicably.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals