Implied Severance of Tenancy in Jointly Held Property

Contentious Trusts & Estates
1

Would forum members agree that there has been no implied tenancy severance in this case where Mother owned property. 6 years before death she transferred property into joint names of Mother and Son with no severance of tenancy. They got a joint mortgage which both paid (would it make a difference if Mother made all the mortgage payments - which may be the case as we are yet to make a detailed enquiry?). Mother was diagnosed with breast cancer and made a Will 2 weeks before her death in which she gave a right of occupation in “my share and interest in the property …” to Son with interest in remainder to 2 Daughters to share.

I have inherited this file and did not draft the Will. Since Mother’s death Son and Daughters have acted in relation to the property as though there had been a severance. Son has since paid Daughter 1 a capital sum for her interest in remainder. He is about to pay Daughter 2 an agreed similar sum.

So now I have to break the news to them that there was in fact no severance of tenancy and therefore Son gets the whole property by survivorship. Great for Son but devastating for Daughters. Son will obviously claim his money back from Daughter 1.

Is that the end of the story or does any one think there may be reason to imply a common intention to sever the tenancy? The possible deathbed discussions with Son and Daughters around how she would share her estate between the children? The gift of “my share and interest”? The subsequent actions of Son in furtherance of a “common intention”? Anything else to look for?

2

I agree with you that based on the facts of your case there would be no severance of joint tenancy as the will takes effect after death and as, such would not be able to severance the joint tenancy based on established principle. If the mother paid all the mortgage on the property, her estate might be able to claim for 1/2 of the mortgage amount paid off by the mother which the son should have paid (if he did in fact not paid).

No sure about the implied common intention to sever the tenancy, as you are dealing with registered interest in land, the severance might require something in writing (not the will) indicating same. If however, on her deathbed the mother was given the assurance by the son that he would honour the wishes in her will, thus causing her not to put something in writing severing the tenancy, then maybe equity could assist the daughter under some principle of estoppel.