Severance, not explicit JT to TIC

[1452_kc]

Severance by an act of a joint tenant 'operating upon his own share'; Severance by mutual agreement; Severance by mutual conduct

If Husband(H) and Wife(W) sit in the same room, at the same time, with a solicitor, and W drafts a Will that leaves here half share in the family home to her children and not the H, and these notes are specifically added to the Will, 'no life interest for the H' and 'no restriction on the sale of the property'. Does that constitute "Severance by an act of a joint tenant 'operating upon his own share'" ?

Also the fact that both H and W were present, does that not also cover "Severance by mutual agreement"

On top of this, not that you would believe this would actually happen, but its what was written by the solicitor. The H had agreed that if needed, he would move into a very nice, very expensive camper home the W had left him in her Will, so the children could get their half share in the house upon her death. fyi H would not have needed to move out, he had inherited his own father house, he had plenty of disposable cash. Surely this is "Severance by mutual conduct" and " Severance by mutual agreement"

Also the Solicitor has stated, after the had Will failed, that 'he was told by ? the property was held as TIC' So he is suggesting that either the W or the H or both stated that the property was held as TIC, so again "Severance by mutual agreement"


So ultimately the property was recorded at the Land Registry(LR) as Joint Tenants(JT), there may be paper work somewhere that sever the tenancy, but no access to property to find that paperwork. The JT may also have been a mistake made decades earlier, a mistake by the LR or the solicitor etc.

Bearing in mind both tenants don't have to agree to moving from JT to TIC, only one has to want it, and that enough to make it flip. So why is a Will not enough to flip it from JT to TIC? Its not physics, it's just paperwork. If the intention was to sever it, but it was recorded incorrectly at the LR, then the intention is still there and only one of the tenants has to have that intention?

Its the same argument i've seen for when divorce is filed, and the property is still held as JT, and then one partner dies. At this point the other partner inherits the dead partners half share, but this gets overturned, as if you are divorcing them you likely don't want them inheriting your half share. Writing a Will that explicitly excludes your H from your half share is even stronger than filing for divorce, as there is no doubt of the W intention.

[1452_kc]

gemini say this...

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When discussing property law, particularly in the context of co-ownership, the phrase "severance by an act of a joint tenant 'operating upon his own share'" refers to a specific method of ending a joint tenancy. Here's a breakdown:

• Joint Tenancy:
  • In a joint tenancy, multiple owners hold an equal, undivided interest in a property.
  • A key feature is the "right of survivorship," meaning that when one joint tenant dies, their interest automatically passes to the remaining joint tenants.
• Severance:
  • Severance is the process of converting a joint tenancy into a tenancy in common.
  • This eliminates the right of survivorship, allowing each owner to hold a distinct share that they can dispose of as they wish.
• "Operating Upon His Own Share":
  • This phrase describes actions taken by a joint tenant that demonstrate an intention to treat their share as separate.
  • Examples of such actions can include:
    • Selling or mortgaging their own share of the property.
    • Entering into a contract to sell their share.
    • Bankruptcy, where their share may be transferred to a trustee.
  • Essentially, it involves a joint tenant acting in a way that is inconsistent with the continuation of the joint tenancy.

Key Points:

• This method of severance is one of several ways a joint tenancy can be terminated.
• It focuses on the unilateral actions of an individual joint tenant.
• The result of such an action is that the joint tenancy is converted to a tenancy in common.

In essence, when a joint tenant performs an act that demonstrates they are treating their portion of the property as their own distinct share, they have "operated upon their own share" and thus severed the joint tenancy.
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Therefore writing a Will that leaves your share to someone other than the other share owner, will sever the Tenancy, ie flip it from JT to TIC.

[EXC]

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