Mark McLaughlin points out that failing to execute the severance of a joint tenancy properly can have unfortunate consequences.
It is relatively common for certain assets (e.g. a property) to be jointly owned. A property can be owned either as ‘joint tenants’ or ‘tenants-in-common’ (this article applies to property ownership in England and Wales). If a property is bought equally, it will be held as joint tenants unless the owners direct otherwise.
Pass it on?
If a property is owned as ‘joint tenants’, it is not possible for an owner to pass on ownership of the property on death (or during lifetime) to third parties. The property passes automatically on their death by survivorship to the remaining owner(s) (and if more than one owner, in equal shares), irrespective of the terms of the deceased’s will or the rules of intestacy.
By contrast, ownership as ‘tenants-in-common’ gives each owner a separate share of the property, which can be left by a joint owner’s will to third parties (or under the rules of intestacy if there is no will) or disposed of during their lifetime.
Whether to sever!
The flexibility offered by ownership as tenants-in-common means that it is not uncommon for joint owners (e.g. husband and wife) to change (or ‘sever’) their joint tenancy in favour of a tenancy in common. An equitable joint tenancy can be severed by a joint tenant (e.g. husband) giving the other joint tenant(s) (e.g. wife) a notice in writing.
The notice of severance should be given during lifetime, as a joint tenancy cannot be severed by will. However, HM Revenue and Customs (HMRC) appear to accept that a joint tenancy can be treated as having been severed by will for IHT purposes by a deed of variation (under IHTA 1984, s 142) (see HMRC’s Inheritance Tax manual at IHTM35092).
Where’s the proof?
If a written notice of severance is mislaid, it may be difficult (although not impossible) to demonstrate that the joint tenancy has been severed.
For example, in Chadda & Ors v Revenue and Customs [2014] UKFTT 1061 (TC), a married couple jointly owned the matrimonial home. Following their deaths, HMRC disputed that the joint tenancy of the house had been severed during lifetime. Prior to his death, the husband’s professional advisers had prepared a notice severing the joint tenancy of the dwelling. However, a signed notice could not be found. The First-tier Tribunal concluded that husband and wife had both signed the notice of severance; that the original document was lost by their advisers; and that the unsigned draft notice submitted as evidence was in the same form as the signed notice that had been lost.
By contrast, in Fantini v Scrutton & Ors [2020] EWHC 1552, a notice of severance of the joint tenancy of a property was sent by one of the joint owners to the other by registered post. However, the notice was returned undelivered. The High Court held that the joint tenancy had not been severed by notice or act by the individual who sent the notice. Consequently, the property would pass on death by survivorship, and not in accordance with the deceased’s will.
Practical tip
General guidance on changing the ownership of property is available from the Gov.uk website. Professional assistance is generally recommended.
