Laura Abbott, Principal Associate in the Disputed Wills and Trusts team at Shoosmiths, explains the impact of Dunbabin v Dunbabin [2022] on mirror wills and the severance of a joint tenancy.

What is the difference between joint tenants and tenants in common?

Where land or property is owned jointly by two or more persons then it can be owned in one of two ways:

• joint tenants
• tenants in common

If a property is owned as joint tenants, then both owners together own 100 per cent of the property. Therefore, if one co-owner dies then the survivor will continue to own 100 per cent. On the first death as between the owners, the whole of the property passes by operation of law to the surviving owner. This is known as the right of survivorship.

If the property is owned as tenants in common, each co-owner has a distinct share (commonly 50/50, but this could be a different split to reflect financial contributions). As such, on the first death as between the owners, the deceased’s share in the property will form part of their estate when they die and pass according to the terms of their will (or the rules of intestacy if there is no will).

In most situations where the joint owners are friends, siblings or business partners, the most appropriate form of ownership would be tenants in common. For couples, either form of ownership could be appropriate. The decision will be made on purchase, but if they choose joint tenants, they can sever the joint tenancy at any stage.

A joint tenant can effect severance by serving all other tenants with a written notice of severance (section 36(2) Law of Property Act 1925). Consultation with or consent from the co-owners is not required. Case law has also held that a joint tenancy can be severed by mutual agreement or course of mutual conduct.

Dunbabin v Dunbabin [2022] EWHC 389

The question before the court in the case of Dunbabin v Dunbabin [2022] EWHC 389 was whether making mirror wills which included provisions for the property that were inconsistent with the law of survivorship amounted to a mutual agreement or course of mutual conduct sufficient to sever the joint tenancy.

The case

In this case John and Angela Dunbabin had been married for more than 60 years and they had four sons.  They purchased their property in Milton Keynes in 1983. The conveyance of the property did not include a provision as to whether they owned as joint tenants or tenants in common, and so the legal presumption that applies is that they held as joint tenants. The property was unregistered. 

In 2008, they made wills in mirror form and the terms of the wills were that on the first death the property would be held in trust for the survivor to remain in occupation for their lifetime and then on their death, their share would pass to their children in equal shares. They made their wills in this way to protect their estate as far as they could from care fees. 

Mrs Dunbabin died in 2016. Mr Dunbabin made a new will in 2019 which gave 75 per cent of his estate to one of his sons, Simon, with the remaining 25 per cent to be shared equally between the other sons. The property was valued at £500,000 on Mr Dunbabin’s subsequent death in 2020. The question was whether the joint tenancy had been severed in 2008 when the mirror wills were made: 

• If the joint tenancy were deemed not to have been severed, then Mr Dunbabin would have inherited the whole of the property on Mrs Dunbabin’s earlier death by survivorship and so 75% of the property now (£375,000) would go to Simon and £41,666 to each of the other three sons.
• If it had been deemed to have been severed, then half of the property would pass to the four sons equally in accordance with Mrs Dunbabin’s will and the other half in accordance with Mr Dunbanin’s will and so the effect would be that Simon would only receive £250,000 and the others £83,333 each in total. 

The other three sons argued that the joint tenancy had been severed, either by written notice (albeit that the original notice had been lost, so was not available) or by mutual agreement or mutual conduct to be inferred by them making mirror wills in the terms that they did.

The verdict

Due to the wording of the mirror wills and an explanatory letter prepared at the time to go alongside the mirror wills referring to ‘half of the house’ going to the children on the first death, the court was satisfied that, on the balance of probabilities, the couple had intended to sever the joint tenancy at the time they made their mirror wills.

In addition, Mr Dunbabin’s new will only purported to deal with ‘my share’ of the property at that time and the will preparation solicitor gave evidence that they had signed a document to sever the joint tenancy.

The judge concluded that the inclusion of the property trust clause would have been “not only unnecessary, but also inexplicable if there had been no severance”. Furthermore, on the issue of severance by conduct, he held that “the evidence satisfies me that there was a course of conduct (in particular, the making of the mirror wills) which showed that one party (indeed, each party) made clear to the other that that one desired that their property should no longer be held jointly but be held in common”.

Summary

This case is significant because it is authority that the execution of mirror wills can be sufficient to sever a joint tenancy. Previously, this was somewhat of a grey area where an express severance had not been completed, and whilst this will remain good practice for completeness, it gives comfort to practitioners in terms of a clear precedent if one has not been prepared, or, as in this case, if it has been lost. 

About the author

Laura Abbott is a Principal Associate in the in the Disputed Wills and Trusts team at Shoosmiths and is a member of the Society of Trust and Estate Practitioners (STEP).

See also

What you need to know about the right of survivorship

What are the intestacy rules in England and Wales?

Find out more

Dunbabin v Dunbabin [2022] EWHC 389 (BAILII)

Joint property ownership (GOV.UK)

Law of Property Act 1925 (Legislation)

Image: Getty Images

Publication date: 4 July 2022

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.