JOINT TENANCY
Joint Tenancy
From experience, we note that many couples having purchased property over the years do not know what joint tenancy means or what type of ownership of property was registered in their names. Simply put, ownership of property as joint tenants is a type of registration of ownership on the title of the property where, upon one party dying, the share owned by the deceased party can be transferred to the surviving party without stamp duty being incurred.
It is not automatic in the sense that it happens by itself but involves a notice of death in respect of the deceased party made to the appropriate Land Registry.
principle of survivorship
The principle operating in these circumstances is known as the principle of survivorship. The share of the deceased joint tenant is transferred to the surviving joint tenant.
Consider an example where partners in a marriage or de facto relationship hold property together as joint tenants and that one partner draws up a Will documenting this person’s intentions to distribute his or her share of the property to children of an earlier relationship.
It should be apparent that in these circumstances, the testamentary intentions with respect to the joint tenancy will fail. The testator’s intention will not be able to defeat the operation of the principle of survivorship in favour of the surviving joint tenant.
Severence of Joint Tenancy
&
Tenants-in-common
In the example from Property held as joint tenancy and tenants-in-common, what needs to take place prior for the testamentary intentions in the Will to have effect is to sever the joint tenancy, converting it into ownership still between the same parties but held as what is called tenants-in-common. This type of ownership of property does not operate under the principle of survivorship and each owner’s share of the property exists in its own silo. In this case, our hypothetical Will may proceed to distribute the testator’s share of the property now held as tenants-in-common to his or her children upon death.
The process of severance of joint tenancy operates in the various states with slight differences.
Please contact us if it appears that ownership of property in a joint tenancy is inconsistent with your testamentary intentions.
