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More Detail About Jointly Owned Property

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, provide more detail about jointly owned property

Jointly owned property – do the Will or rules of intestacy even apply to it?

The question of whether estate property is jointly owned and if so the type of joint ownership can determine if that property (which is usually the largest estate asset) falls to be dealt with by a Will (if there is one) or if none, under the rules of intestacy or simply falls outside the scope of both.

The question of whether estate property is jointly owned and if so the type of joint ownership can determine if that property (which is usually the largest estate asset) falls to be dealt with by a Will (if there is one) or if none, under the rules of intestacy or simply falls outside the scope of both.

However, if there is a Will and the main estate asset was held jointly by two or more coowners as so-called “joint tenants”, and this wasn’t factored in by the Will writer (who should have advised on arrangements to “sever” the joint tenancy) he/she can be found negligent in a subsequent claim by disappointed beneficiaries and be ordered to pay them damages in compensation.

For an earlier discussion on this area in general see:

Let’s Talk About Jointly Owned Property and How That Can Effect Wills – Will Claim Solicitors

And

What Can Be Done When a Solicitor Fails to Sever a Joint Tenancy When Makiing a Will Purporting to Dispose of It – Will Claim Solicitors

A brief discussion about the two types of joint ownership

The two types then are (as mentioned) “joint tenancies” and “tenancies in common”. Unless a property is held under a “tenancy in common” it will fall outside of the part of the deceased’s estate which is being distributed under the terms of his/her last Will (or if none under the rules of intestacy).

What does it mean when a property is owned by two or more co-owners as “tenants in common”?

Essentially it means their shares are defined.

Lawyers in England and Wales talk about legal and equitable ownership and in fact they are two distinct things. So in England and Wales whilst it might appear from the legal documents that the owner of a property is a certain Mr Smith, he might not retain the equitable title. The best way to understand this is to consider that the equitable owner of a property is ultimately entitled to receive all of the profits from that property (or his equitable share of it). This is notwithstanding that the certain Mr Smith was the owner on paper.

Equity tends to follow the law so where, as here, Mr Smith is the owner “on paper” (in law), it will assume that he is also the owner of the equitable estate. A similar assumption applies to joint owners. Joint owners are generally assumed to be “joint tenants” of the equitable estate. However this assumption can be displaced by words, conduct and other circumstances such as:

  1. Express or implied words of severance (whereby the joint owners shares are defined);
  2. Absence of the “four unities” – see below in reference to joint tenancies;
  3. Contributions towards the purchase price in unequal proportions;
  4. Commercial partners;
  5. Business tenants;
  6. Joint mortgages.

What does it mean when a property is owned by two or more co-owners as “joint tenants”

Their shares are undefined (but can be severed or defined, creating a “tenancy in common”). However and as mentioned where the shares remain undefined and one of the co-owners dies, then his/her share passes automatically to the survivor(s).

However, for the property to be hold under a “joint teancy”, it requires the presence of the “four unities”.

A. POSSESSION

Each joint tenant must have the right to each and every part of the land – therefore no joint tenant can take possession of a part or portion of the land to the exclusion of the others.

B. INTEREST

The interest of each and every joint tenant is exactly the same in terms of extent, nature and duration.

C. TITLE

The interests of the joint tenants must derive from the same instrument.

D. TIME

The interest must be acquired by the joint tenants at the same time.

So, if one or more of these does not apply, the property is held as “tenants in common”.

If you consider any of these facts and matters are of interest, 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 and/or visit us at www.willclaim.com.

We provide details about our no win no fee arrangements at https://www.willclaim.com/nowin-no-fee/.

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