By Darryl Browne -
Snapshot
- When a joint tenant makes a will, in order to be able to convey or give property on death, they may wish to sever the joint tenancy.
- There are three ways that a joint tenant may sever the joint tenancy: unilateral action; mutual agreement; and by a course of dealing intimating the interests of all were treated as tenancy in common.
- When taking instructions for a will, ascertain the nature, extent and ownership of the testator’s assets, raise practical solutions and role play scenarios which are provided for in the will.
A joint tenant who wishes to transfer his or her interest to another person has nothing to convey or give. This means that, depending on the ‘gamble of the tontine’ (as Deane J called the right of survivorship in Corin v Patton (1990) 169 CLR 540, 572), there may be nothing for the joint tenant to give on death. When the joint tenant comes to make their will, he or she may want to change that outcome by ending the joint tenancy.
Means of severing a joint tenancy
There are three ways that a joint tenant may sever the joint tenancy, so that there is separate property to convey or give. First, in some circumstances there may be severance by unilateral action. Second, severance can occur by mutual agreement. Last, there may be severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common (McNamee v Martin as Financial Manager for John Boden McNamee [2021] NSWSC 568 at [28] (‘McNamee’)).
McNamee decided that a joint tenant could unilaterally sever the joint tenancy by assignment of the jointly owned property, being a chose in action, a debt, to herself by deed poll. However, it is by the second and third means of severing a joint tenancy that joint tenants achieve that outcome by making mutual wills. Historically, this occurs where mutual wills deal with an interest in real estate in a manner inconsistent with ownership of the real estate interest passing by survivorship.
