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CONTESTING A WILL – LET’S TALK ABOUT JOINTLY OWNED PROPERTY AND HOW THAT CAN EFFECT WILLS

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, consider how jointly owned property can effect Wills and Will-making

How can jointly owned property effect Wills and Will-making?

We have looked into this issue before in relation to how jointly held property or property that is placed into the joint names of the deceased and another person, can potentially defeat the terms of a valid Will. We refer in this regard to our earlier blog on the subject as follows:

https://www.willclaim.com/property-co-ownership-challenging-wills/

How can this happen?

Well this is very often an overlooked scenario – jointly held or owned property can pass independently of the terms of a Will. There are two types:
• “Joint Tenancy”
• “Tenancy in Common”

There is a very good government website explaining at:
https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

Very simply, a joint tenancy is the most common type of joint ownership – usually a husband and wife will jointly own their home under this arrangement. It means that their respective shares in their home are undefined. However, please don’t dwell too much on this but rather understand that under this type of joint ownership the survivor (where one joint owner has passed away) inherits the entire property. This is notwithstanding the terms of any valid Will which says something to the contrary. The Will terms are rendered completely pointless.

If the property is jointly owned on a tenants in common arrangement, it means there are defined shares, usually 50:50. Where a property is owned by joint owners as tenants in common then if one of the co-owners dies, the property falls into his/her estate to be dealt with under the terms of any valid Will.

So what must be done to ensure that jointly owned property falls to be determined by a valid Will?

Quite simply where there is any jointly owned property and a person who makes a Will wants his/her share of the property to pass under the terms of that Will, then he/she must ensure the jointly owned property is held under the tenants in common arrangement.

How do you know which form of joint ownership applies?

If the property is owned as “Tenants in Common” there will be a “restriction” in the Proprietorship Register of the Land Registry title of the jointly owned property as follows:

The wording of this restriction is as follows (Form A, Schedule 4 of the Land Registration Rules 2003).

“No disposition by a sole proprietor of the registered estate (except a trust corporation) under which capital money arises is to be registered unless authorised by an order of the court.”

(refer to https://www.gov.uk/government/publications/private-trusts-of-land/practice-guide-24-private-trusts-of land#:~:text=The%20wording%20of%20this%20restriction,an%20order%20of%20the%20court.%E2%80%9D)

What can I do if the jointly owned property is held as a “joint tenancy”

This as mentioned can be a problem if someone making a Will wants to leave his/her share in a jointly owned property by the terms of a Will (because on death the survivor will inherit the property).

In these circumstances it is possible to “sever” the joint tenancy to “create” a “tenancy in common” to be certain that ones share of a jointly owned property falls to be determined by a Will rather than passing to the survivor. For information on how to do this see:

https://www.gov.uk/joint-property-ownership/change-from-joint-tenants-to-tenants-in-common

In our next blog we consider what can be done where a Solicitor has drawn up a Will disposing or attempting to dispose of jointly held property, but failed to sever a joint tenancy.

If you consider any of these facts and matters are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat.

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