Retrospective severence of joint tenancy

[Guest]

Mr and mrs smith find their marriage is destroyed by lies told by mr smiths adult stepdaughter. Mr smith moves out of the marital home for period of about two years. Mrs smith stays in the house and lives with her daughter. Mrs Smith makes a will, excluding her husband of the last 55 years in favour of her daughter. Mrs Smith leaves "her half of the house" to her daughter. The house has been owned by Mr and Mrs Smith for 44 years as Joint tenants. Mrs Smith dies. The daughter who has lived there with them for 44 years makes a claim for financial provisions under the Inheritance (Provision for Family and Dependants) Act 1975 claiming she needs her mothers money to support her housing needs.
The daughter tells her step father (mr Smith) that she will invite the court to retrospectively sever the joint tenancy in order to inherit her late mothers estate.
At no time while she was alive did Mrs Smith make any effort to sever the Joint tenancy. Nor did Mr Smith. The daughter moves out of the family home two months after her mothers death and into a modern two bedroom appartment in a good part of town. Mr Smith moved back into his house with the prospect of having to sell it should his step daughter succeed in her legal challenge to his estate. As a joint tenant and a married survivor, Mr Smith became sole owner of the house the moment his wife died. No effort was made by either party to formally sever the joint tenancy when (in Mrs Smiths case at least) she had more than one opportunity to do so and on making a will was probably highly advised to do so.

By what measure would or could a court decide that the tenancy was severed when both parties were not aware of the severence. Obviously, Mrs Smith can no longer say exactly what her wishes were but if her wishes were to leave half her house to her daughter then the easiest way to achieve this would have been to sever the joint tenancy and become a tenant in common rather than wait for her to die and then fight it out in court?
I could expand, but I have tried to keep this as short as possible.

I would very much welcome any comments, thank you.

[des8]

AFAIK it is not possible to sever retrospectively except for tax purposes, but as it is late now I'll do some searching tomorrow

[des8]

Bearing in mind I am not a professional, it seems to me that the (step?) daughter will have a very difficult task persuading a judge to allow a retrospective severance of a joint tenancy.

Basically after a joint tenant dies severance is no longer possible because death extinguishes the joint interest. For this reason, a testamentary disposition cannot sever a joint tenancy.
This means a court will have to decide if the joint tenancy had already been severed

From your post it seems that the mother had no intention of severing the joint tenancy.
( she certainly had not delivered a written notice severing the tenancy, and had not done so when executing her will)
nor does it seem there is any evidence indicating severance by mutual conduct.


Often claims of this sort are brought by a party hoping that due to the high cost of contentious litigation the other party will agree an out of court settlement.

It is advisable to consult a solicitor specialising in contentious litigation earlier rather than later to see what options are available

[Notnorth]

The solicitors "advice" was to make a deal with the step daughter which says dad can stay in his own house until the end of his life, at which time the step daughter will take the half share of the property. Which basically means, give her everything she is asking for. But at least he wouldn't have to worry about his own house being sold. It's not a deal he is happy with. I know principles and feelings get in the way of legal decisions but with everything she has put him through (and his wife) he is thinking of calling her bluff and seeing just how far she could take this. It would be very expensive to litigate, money she doesn't have. Of course there is always the risk she is doing some sort of no win no fee deal? IF she won and claimed cost, dad could find himself homeless and in debt while she walks away with about 60k. Obviously if dad won he wouldn't be able to recover his cost because his daughter is already crying poverty, hence the need for financial support from her mothers estate.

I did ask the solicitor about fraudulent calumni but he really didn't know what I was on about. I mean, these peple are supposed to be professionals.

I have no doubt that if one were to write a textbook case of fraudulent calumni, THIS case would be it.
To tell her mother every day that her step father was seeing other women and he was planning to put his wife in a nursing home. It had the desired effect. His wife ended up hating him. It was ALL 100% totaly untrue. It destroyed the marriage and it is that breakup of the marriage that the daughter is inviting the court to use as evidence of a severence of the joint tenacy. There would never have been any breakup had the daughter not lied to her mother with the express intention of separating her parents marriage. Before the lies, it was inconceivable that mum would have excluded her husband from any will she may have made. Indeed, before the lies and the will made to her daughter, neither mum or dad ever made a will. They simply took it for granted that when one died, the other would own the house as sole owner.

WE are meant to believe that after 55 years, dad suddenly started having secret meetings and tryst with as yet unidentified women. At 79 years old no less!
I was just wondering how this could be brought up in any "negotiations" The solicitor seems to think that fraud, being a criminal act, needs so much evidence to be proven that it is highly unlikely to be used in court.
I don't know how much evidence would be needed but recordings of my mother thanking her daughter for telling her about these other women her husband has been seeing might be a start?
Or recording of her daughter telling her mother that "I'm going round to see her husband" What husband? The woman doesn't exist and never has.
By the time my sister had finished with my mum, she had her standing in the street looking for this other woman. Shouting down the street at somebody who wasn't there. (Mum was almost blind). What did her daughter say at that point to her distraught mother? "Oh mum, you have just missed her". Three years on from her first allegations and still not one name, not one witness, not one photograph of this other woman. Mum went to her grave believing her husband of 55 years cheated on her.

If that isn't fraudulent calumni I don't know what is!.

[des8]

Was the solicitor your father consulted a specialist in this field of litigation?
Rather than defending himself I believe your father would have to be proactive and challenge the will on the basis of Fraudulent Calumny.
There is a high bar to clear and a specialist law firm should be consulted to see what options there are, and how any action could be financed (there are more ways than conditional fee agreements... even house insurance legal expenses extension might be used to defray some of the cost)
A single fixed fee consultation should give some pointers

Has the daughter actually filed a claim, or just threatening it?

If the daughter is prepared to accept the solution advised by the current solicitor it would be an indication she is not in immediate need of funds to support her housing costs!

[Notnorth]

I asked at the solilicitors for somebody who specialises in this type of work. He wasn't too keen on challenging the will. said it would be costly with a very high bar as you have said. But even a successful challenge would only prevent her from claiming. If she has limited means (which to be honest, she has) He would have no chance of recovering cost.
She has not yet filed a claim, just had letters from her solicitor saying his client has instructed him to issue court action. If we do not respond he will use this to show our unwillingness to engage in alternative dispute resolution and as such will ask the court for cost etc. Or something like that. We have had three letters like that so far.
Daughter is now renting quite a nice two bedroom appartment in a new developement in a great location and drives around in a BMW. But she has not worked full time for over 15 years. Not disabled, not ill. Her decision to never leave her parents home has always been her choice. They even (before she got to work on her mum) both offered her the money to pay for deposit and bond on a flat. They BOTH wanted her to go.

Four or five weeks after that, dad suddenly was seeing this "other woman" and with no evidence what so ever, she told her 84 year old mother. She told her mum he wanted her (his daughter) out so that he can work on getting her mother placed in a care home. With the house empty, he can bring in this other woman.
Yes, she is a real piece of work.

[des8]

If this was a "specialist" in a High Street solicitors, with all due respect, (s)he may not be that specialist.

However it is quite possible that their advice to negotiate is well founded, but again you really need a specialist to do that!

[des8]

Some overnight musings:

The daughter can't make a claim under the Inheritance Act.
She was the only (?) beneficiary of her mother's will, which left the entire estate to her.
A claim under the Act is made against the net estate which is now hers

It is for the executor of the estate to collect in all the assets.
He has to identify those assets , and where there is a dispute over ownership he has to prove the estate's entitlement.

In this case the executor has to prove the estate assets include the mother's share of the equity in the house.
This will involve proving the mother severed the joint tenancy.
The Law of Property Act 1925 sec 36 (2) clearly states "... any tenant desires to sever the joint tenancy in equity, he shall give to the other joint tenants a notice in writing of such desire or do such other acts or things as would, in the case of personal estate, have been effectual to sever the tenancy in
equity, ........"
Nothing you have stated indicates that the mother even had the intention of severing the joint tenancy, let alone did any of that required by the act..
The daughter can invite the judge... but he may well decline that invitation.

Was the will drafted by a solicitor?
If so has your solicitor sent a Larke v Nugus letter to them to discover if the testator was advised regarding the severance of the joint tenancy?

On the basis of what you have posted, I would be inclined to come down on the side of your father and call her bluff.
Many (including some solicitors) will threaten contentious litigation because everyone is aware of the possible costs and will settle to avoid possible costs.
In this case it seems to me not really a contentious dispute over the will/legacies /beneficiaries etc, but a dispute over ownership of property.
Did she or did she not sever the joint tenancy? The answer to that will settle the matter.

[Notnorth]

Wow! DES8. That was some overnight musings.
In order for my sister to make a claim on my mothers estate, she (through the court) has to establish that my mother had an estate to leave. As a joint tenant she didn't have a separate estate. As a tenant in common she would have had a separate estate. My sister is the named executor of the will. So not only is she the executor but also the sole beneficiary.
The whole matter rest on the question you mentioned. But if asked differently it expands the possible answer. So, not "Did or did she not sever the joint tenancy". Rather, "Was the joint tenancy severed". If not, can the court retrospectively sever the joint tenancy? If it can, the estate can be divided 50/50 and the will would stand. In this way, the daughter can claim her share of her mothers estate which would be 100% of her mothers estate, which in turn would be 50% of the joint estate.
The consensus of the solicitors we have seen so far seems to be that the court may well decide that the tenancy was broken by the dealings of both tenants.
So you drive a wedge between your parents. Fill your mothers head with lies. Make life so intolerable that your father has no choice but to leave his home and then use the fact that he left his home as the reason the tenancy was severed.

I have no idea how my mother was advised by her solicitor which was not the same solicitor who is handling my sisters case.
I find it hard to believe mums solicitor didn't warn her of the pitfalls of not severing the J.T. I really doubt my mum would have understood what it all meant anyway. Only that as long as she didn't sign it (and dad didn't rock the boat) nothing would change as regards to her occupying the house.
Thanks for the heads up regarding the Larke v Nugus letter. I've never seen that before. I think it could be very relevant. But of course, as things stand at this moment, mums estate died with her, the joint tenancy was not and has not been severed.
But all this just goes to show what a mess has been created by the Family provision and inheritance act. It could well be that a joint tenancy is not worth the paper it is written on.

[des8]

I do not see a court retrospectively severing a joint tenancy.
A court might find that the tenancy had already been severed by one of the tenants acting in such a way to effect a severance, but that needs "a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common"

IMO one party leaving the marital home is not a valid reason for a third party to then assert the joint tenancy is severed.
I wonder if there are other circumstances or actions by your mother of which we are not aware

However a litigious disgruntled party will argue that black is white, and do so hoping that the fear of costs will produce a settlement figure
I am aware of a current case where a person excluded from the marital home, and requested several times for an arrangement to buy out his share and finally issued a notice of severance and filed it with Land Registry is still having his will disputed.

I doubt there is more I can add, but if you need further pointers or just a sounding board please revert to to this thread

[Notnorth]

I think your second point that the court might find the tenancy was already severed (by dealings)is the road her solicitor is going down. On the face of it I have to concede that they may have a reasonable case. Mum made a will (to her daughter) she enquired about a divorce (but didn't take it any further), she threatened to get a non molestation/ occupancy order and made claims that her husband was violent towards her. She was not prepared to even contemplate that dad should benefit in any way from any potential severance. Not that they ever discussed it in any rational or constructive way.
Believe me, it was BAD. But all this has to be taken in context. On the face of it, the marriage had broken down and all that was left was to sever the tenancy and split the proceeds, except neither party made any attempt to sever the tenancy. As I have already stated, it was beneficial for mum to NOT sever the tenancy while she was alive. It is quite clear that that was a deliberate choice she made. She had almost 3 years to do it, and she didn't.

Mum was 87 and not in the best of health. There is no way she could make rational choices in such a complicated matter. But her solicitor obviously felt that she had the capacity to make a will and the capacity to understand the difference between J.T and T.I.C. It is inconceivable that she wouldn't have been advised to sever the J.T. So the question has to be, why didn't she? There can only be one rational answer. She chose not to.
Remember, my sister had NEVER left home. Her entire life she had lived at home (by choice). Which begs the next question. If her stepfather was so bad, why did she choose to live there her entire life?
My sister didn't want to have to leave the only home she had known for the last 44 years, but she knew that a severance of the J.T would mean a probable house sale. As long as the J.T was in place she was safe.
The J.T gave my sister relative security while it remained in place, my sister (and my mum) gained benefit from it, but my sister would gain no benefit from a J.T once mum had died. She already knew the will wasn't worth anything without a severance of J.T. That was the main reason dad had never made one post breakup. He knew the J.T was in place, and he knew he would have to sever it. But still loving his wife, he didn't want to see her living in a flat like he was. (bonkers I know but that's love for you). No doubt, my sister was also aware that should dad die first, the J.T would make her mum the sole owner of the house. IF that had happened, she would have been secure for life. The whole house would have been hers. It was a gamble that didn't pay off. Mum died first.
The first thing she said to my dad when she saw him after mum had died was "You get it all now" "That was my inheritance" I tried to point out that dad did not inherit anything, the house was already his. He was the sole owner.

So yes, the RELATIONSHIP had broken down, but no effort was made by either party to rock the J.T boat. The relationship broke down because of the fraudulent lies told by my sister to get dad out of the house. Just a simple letter to my dad from my mum at any time in the last 3 years would have sorted this whole mess out. Now, I know that, and you know that, and I am willing to bet my sister knows that and has known that right from the moment my mum signed that will. But 50% at that time wasn't enough. Now, it is the best she can hope for.

Thank you very much for your input.

[des8]

..... and if your father's negotiator is any good she won't even obtain near 50% and if necessary your father will be able to raise the cash without selling his home