Wills Cannot Change Property Ownership

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    A recent case has confirmed that in the absence of a demonstrated specific intention regarding the ownership of a property, the wording of a Will cannot change its ownership.

    The case arose as a result of a challenge to a Will following the death of the grandmother of one of the defendants.

    The grandmother and her husband had made their Wills in 1967 and the grandfather’s Will left the family home (which was owned as beneficial joint tenants) to his wife for life and on her death to their daughter. The grandmother’s Will, executed at the same time, was similarly worded. The grandfather and the couple’s daughter died in 1980. The grandmother died in 2000, having made a new Will.

    The question facing the court was whether the family home formed part of the grandmother’s estate or not. That in turn depended on whether the property was held by the grandparents as tenants in common or joint tenants.

    The beneficial joint tenancy means, of course, that the joint tenants both own all of the property and title to it passes from one to the other on death by way of survivorship. In such cases, the property is not part of the deceased’s estate. Where ownership is by way of tenancy in common, then each person owns a share in the property. In that case, on death that person’s share forms part of their estate.

    The claimants argued that when the grandfather died, his interest in the property passed to his wife in its entirety. It therefore became her exclusive property and hers to deal with as she thought fit. The defendants argued that the execution of the 1967 Wills severed the joint tenancy. The first defendant in the case was the daughter of the couple’s deceased daughter. She stood to have a larger inheritance (via her mother’s estate) if her argument was accepted.

    The court could not accept the proposition that the joint tenancy had been severed in the absence of specific evidence that this was so: the mere creation of the Will was not sufficient. The property was therefore part of the grandmother’s estate. The court ruled that there was no clear intention in the 1967 Wills to sever the original joint tenancy.

    In the absence of a clear intention, the courts are unwilling to ‘read into’ documents things which are not there.

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    Matt Walkden Will Writer

    About Matt Walkden

    I am a Professional Will Writer and I offer a small number of other products that complement my Will Writing such as Lasting Power of Attorneys (LPA’s), Fixed Price Estate Administration, often called Probate and some Property Products such as changing a family home from Joint owners to Tenants in Common.

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