Tenants in common or joint tenancy?

carled

My mum's husband died a year or so back (her 2nd marriage, lasted 15 years) and it seems there was a bit of a can of worms. Apparently he was very controlling with financial stuff and kept a lot of things hidden from my mum which only came to light after his death.

When they bought the current house, it was as joint tenants. Just after doing this, the husband insisted on wills being sorted out as one of his children was being difficult about money and was convinced my mum was just after her dad's money. The idea was apparently that some legal document would be drawn up that ringfenced the husband's initial contribution to the property purchase such that his children alone inherited that at the time of his death. Both wills were set up and my mum was told to sign various documents at the time, which she did thinking that they were all to do with the wills and this agreement on ringfencing this bit of money for his children.

Fast forward 15 years and when the paperwork started appearing after his death, it turns out that he'd apparently been trying to set up a tenancy in common back then. My mum had absolutely no idea what a tenancy in common was, neither did anyone ever talk to her about it back then. She just assumed that the house was hers now after his death. Apparently one of the documents that she was told to sign at the time the wills were being set up was actually a declaration of trust in which it refers to the ringfencing of his part of the property purchase price for his children and apparently also alludes to what could be constituted as tenancy in common instead of joint tenancy. She was not allowed to read the document back then and neither did she get any legal advice about what he was up to.

It also turns out that his will refers to tenancy in common (hers doesn't) and furthermore there is no restriction on the land registry that refers to any such tenancy in common.

Unsurprisingly, his children are now trying to insist that severance has occurred and his share of the property forms part of his estate to be held in trust for when my mum dies. My mum is insisting that no such severance has occurred and that the house is hers, therefore they only get whatever is agreed between the trustees (the two children and my mum) from his other assets and not the property.

I'm due to be meeting my mum's solicitor with her in a week or so in order to try and sort all this out. I'd be interested to hear some views on this that I may be able to discuss with her solicitor next week. I've done a bit of reading on this online and it appears complex. There seems to be no "course of dealing" that indicates severance, there is nothing on the land registry and the only thing that could be held up is the declaration of trust which she signed thinking it was part of the will/ringfencing exercise and didn't know it was anything to do with tenancy in common. Strangely though, her solicitor appears to be treating it as a slam dunk that the property is held in common purely on this declaration of trust that exists, even though she has pointed out (and demonstrated by presenting early email exchanges between my sister, me and her about this and solicitor notes from when she took free advice and was first told about the existence of the declaration of trust, which she'd known nothing about up until then).

G_M

carled wrote: »

It also turns out that his will refers to tenancy in common (hers doesn't) and furthermore there is no restriction on the land registry that refers to any such tenancy in common.

Pay £3 to the Land Registry here and download the property Title.

* is she named as a registered owner?
* is ownership registered as Joint tenants or tenants in common?

this is what matters, not what is written in the will. Though IF the Title is registered as tenants in common then the will becomes critical.

See also

https://www.gov.uk/joint-property-ownership/overview

TBagpuss

All that is required to sever a joint tenancy is for one of the joint tenants to give notice to the other. It is normal for there to be a form of ackonwledgment or receipt but the severance is effective from the moment notice is served. As a joint tenancy can be severed by the unilateral action of one party she would stuiggle to argue that it has not ben severed, although she *might* have an argument as to whether the effect of the severance was to leave them as joint tenants in equal, or in unequal shares.



I suspect that the declatation of the turst will operate as valid notice as severance, and that she will not be able to suuceed in any argument that the Joitn tenancy has not been severed.

However, as your dad's widow, it may be open to your mum to make a claim against his estate under the Inheritance Act if his will has failed to make reasonable provision for her by will.

But if the children are only saying that part of the house is held in trustto come to them on your mum's death , not seeking to force a sale of the house now to release their interest in the proprty, then it may well be that that would be seen as resonable provision. Does the declaration of trust orhis will make provision for her to be able to move and to own any new property on the same trusts, if she wishes to do so? If not, then a deed of variation to provide for that might be appropriate.

carled

G_M wrote: »

Pay £3 to the Land Registry here and download the property Title.

* is she named as a registered owner?
* is ownership registered as Joint tenants or tenants in common?

this is what matters, not what is written in the will. Though IF the Title is registered as tenants in common then the will becomes critical.

See also

https://www.gov.uk/joint-property-ownership/overview

Thanks for the response. As mentioned above (it's hidden in the waffle, sorry!) it just has my mum and her husband on as registered owners. It doesn't say anything about joint tenancy or tenancy in common. It has nothing in the restrictions part B that mentions it either.

carled

TBagpuss wrote: »

All that is required to sever a joint tenancy is for one of the joint tenants to give notice to the other. It is normal for there to be a form of ackonwledgment or receipt but the severance is effective from the moment notice is served. As a joint tenancy can be severed by the unilateral action of one party she would stuiggle to argue that it has not ben severed, although she *might* have an argument as to whether the effect of the severance was to leave them as joint tenants in equal, or in unequal shares.



I suspect that the declatation of the turst will operate as valid notice as severance, and that she will not be able to suuceed in any argument that the Joitn tenancy has not been severed.

However, as your dad's widow, it may be open to your mum to make a claim against his estate under the Inheritance Act if his will has failed to make reasonable provision for her by will.

But if the children are only saying that part of the house is held in trustto come to them on your mum's death , not seeking to force a sale of the house now to release their interest in the proprty, then it may well be that that would be seen as resonable provision. Does the declaration of trust orhis will make provision for her to be able to move and to own any new property on the same trusts, if she wishes to do so? If not, then a deed of variation to provide for that might be appropriate.

He wasn't my dad! Apparently there's some other complexity in that the children are to be registered as having a beneficial interest in the property and that they are to have veto over any and all expenditure she makes in the upkeep and day to day running of the property.

I don't have all the details (hence why I'm attending the next meeting with her & solicitor) but it seems unreasonable for the other children to be given such power over my mum. Particularly where there's been such a massive breakdown in trust and communication between them due to their attitude towards her.

If she's been duped into signing something she thought was will-related then I also don't see that this should count as severance of joint tenancy. As I said before, the notes from the first legal meeting (with a different solicitor to the current one) show clearly she hadn't the faintest idea what tenancy in common even was, let alone had willingly signed anything to this effect. Should it really take 15 years for a severance of joint tenancy to make it onto the land registry?

TrickyDicky101

TBagpuss wrote: »

But if the children are only saying that part of the house is held in trustto come to them on your mum's death , not seeking to force a sale of the house now to release their interest in the proprty, then it may well be that that would be seen as resonable provision.

I read the OP's post as implying the above.


if this is the case, I am failing to understand why your mother has a beef with it - surely that is what she agreed to at the time (ie safeguarding his children's inheritance)? Why would his death change that (not asking legally here but morally/ethically)?

carled

TrickyDicky101 wrote: »

I read the OP's post as implying the above.


if this is the case, I am failing to understand why your mother has a beef with it - surely that is what she agreed to at the time (ie safeguarding his children's inheritance)? Why would his death change that (not asking legally here but morally/ethically)?

At the time of house purchase, they put in (slightly) different amounts. The children of the husband were concerned she was trying to get his money. Therefore they agreed that out of the original purchase price (about £125,000 I think) that money would be split 2/3 to his children and 1/3 to hers (me and my sister). It was more like 60/40 that they paid in, but my mum wasn't that fussed about making it 2/3 to 1/3. I think the remainder was to be split 50/50. I think that due to the abusive relationship she endured and the attitude of the kids since, she's trying to do her own ringfencing now based on the current property price so they don't benefit in future on the increasing asset of the house. I'm a bit lost by what's going on and will wait to see what the solicitor says. I think the chief concern is this power of veto over living/maintenance expenses.

G_M

carled wrote: »

Thanks for the response. As mentioned above (it's hidden in the waffle, sorry!) it just has my mum and her husband on as registered owners. It doesn't say anything about joint tenancy or tenancy in common. It has nothing in the restrictions part B that mentions it either.

See Proprietorship Register.

does it have an entry saying:

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 the court.

If yes: tenants in common

If no: joint tenants

carled

G_M wrote: »

See Proprietorship Register.

does it have an entry saying:



If yes: tenants in common

If no: joint tenants

Just has:
B: Proprietorship Register

This register specifies the class of title and identifies the owner. It contains

any entries that affect the right of disposal.

Title absolute

1 (15.01.1999) PROPRIETOR: xxxx(husband) and xxx (my mum) of xxxx (property address)
Title number LTXXXX

End of register

G_M

carled wrote: »

Just has:
B: Proprietorship Register

This register specifies the class of title and identifies the owner. It contains

any entries that affect the right of disposal.

Title absolute

1 (15.01.1999) PROPRIETOR: xxxx(husband) and xxx (my mum) of xxxx (property address)
Title number LTXXXX

End of register

So you own as joint tenants.

As joint tenants (sometimes called ‘beneficial joint tenants’):

• you have equal rights to the whole property
• the property automatically goes to the other owners if you die
• you can’t pass on your ownership of the property in your will

https://www.gov.uk/joint-property-ownership/overview

carled

Yes, that seems to be the case. But there is a declaration of trust and the husband's will that refer to tenancy in common. Allegedly (I will find out more in due course) that is being held up as constituting severance of joint tenancy potentially!