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Leaving Jointly-Owned Property in Your Will - Avoiding Pitfalls

on Thursday, 31 March 2022.

Did you know that the way you share ownership of jointly-held property really matters when making your Will?

The consequence of not recording this correctly can mean your chosen people miss out on their inheritance. The recent case of Dunbabin & Ors v Dunbabin explains why.

A Costly Mistake

Angela and John Dunbabin, a married couple, had four sons, Michael, Timothy, Simon and Adam.

In 1983 the couple bought their family home jointly but there was no record stored of how their individual  beneficial interests in the property were owned, either as:

  • tenants-in-common - meaning that they each owned a divisible half and when making their Will, they were free to leave their half to whomever they chose
  • or as joint tenants - meaning that on the first death, the survivor would automatically inherit the whole property, regardless of any Will made by the first-to-die

In this case to determine the couple's type of ownership at the time of purchase, the Court followed the well-established default position that Angela and John held the property as joint tenants as there was no evidence to contradict this.

The problems began when Angela and John both made Wills in 2003 and then made new Wills in 2008, in which a trust of the first-to-die's 'share' in the family home was created. The terms can broadly be summarised so that the surviving spouse was entitled to live in the property until their death, following which the property would pass to the couple's four sons equally.

Angela died in December 2016 and their son Michael also died in December 2019. In November 2019 John made a new Will in which he directed that 75% of his entire estate (including the family home) be left to Simon and 25% to his other sons between them. John then died in April 2020.

Dispute Over Entitlements

The claim made by Timothy, Adam and Michael's widow and son to the Court, was that Angela and John had in fact severed their joint tenancy before Angela's death. This would mean that John only owned half the property and could not pass 75% of the whole property to Simon.

The Court's Decision

The Court reviewed the evidence to determine whether it was more likely than not that the couple had severed their joint tenancy when they made their Wills. Crucially, the Court found that there was evidence provided by the Will writer that he had advised the couple about the need to sever a joint tenancy, even though there was no permanent record of a Notice of Severance having been signed or kept on the Will file. The Court concluded therefore that the couple had severed the tenancy.

As a result, only 75% of John's half of the property passed to Simon with the remainder of the property passing to the others.

This case illustrates the risk of a costly dispute arising if the correct advice is not given and the correct details are not stored on the Will file.

For expert advice, please contact Fiona Lawrence in our Contentious Trusts and Probate team on 07909 901370.

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