Severance of joint tenancy (parents house)

noclaf

Hi All,
I'd like to understand if I have grounds to sever the joint tenancy of my parents home or if this cannot be done or some other action is required.I set out below all the info I have/know but appreciate any input/questions if I missed anything.
Property was bought by parents as a married couple with joint tenancy, just to add I am not an owner of the property or named on the deeds etc It's wholly owned by parents.
They divorced over 20 yrs back, both mentioned  passing "equitable share" of property to myself in each respective last will so the intention here is clear. It appears they see themselves as owning a 50% share each based on wills and divorce agreement, specifically the wording used reflects this.
Checking the land registry docs in 2019 it appears the property is still showing as a joint tenancy. 
I have deputyship for my mother, I am in the process of applying for my father. Both are deemed as lacking in mental capacity (Both have a history of mental illness and one parent also has dementia).
Questions:
Does the tenancy have to be severed via a formal application to the land registry or would my parents divorce and intention to pass their respective share of the property to myself suffice?
If the answer to above is that the tenancy must be formally severed can I do this now or do I need to wait untill deputyship for father is granted?
Based on the paperwork it appears some forms should of been signed and sent back to the solicitor as part of severing the tenancy. I have no way of checking if this ever happened...could it be worthwhile contacting the solicitor my mother used for the divorce?
Anything else obvious I've missed here?
Thanks

Mojisola

As their deputy, you have to do things in their best interest.

Severing the joint tenancy so that you inherit 50% of the value of the house on the first death isn't in the survivor's interest.

pphillips

There are 5 of ways of severing a joint tenancy in equity.
1. A written notice by one of the joint tenants served on every other joint tenant containing a clear expression of the intention to sever.
2. An act by any joint tenant operating on his share (such as a disposal, mortgage or bankruptcy)
3. Mutual agreement, this need not be enforceable and can be express or inferred by conduct (but a will cannot be used as evidence of severance).
4. Any course of dealings (including negotiations) in which one party makes clear to the other that they desire that their shares should be held in common.
5.  Under the forfeiture rule as a result of homicide.
If severance has taken place in equity, it will be necessary to notify the Land Registry Office so that they can place the prescribed restriction on the title.

noclaf

Point noted on putting interests of my parents first and I will seek legal advice before doing anything further however this isn't a case of me sat here hatching a plan to take my parents assets. The qu on the tenancy came up when initially applying for deputyship for one parent as it required evidence of wills, other legal docs etc I was advised this might be an option but haven't looked into it further hence asking questions.
"If severance has taken place in equity"   - This I am not sure about, as said I think it was the intention but maybe not completed.

unholyangel

Mojisola said:

As their deputy, you have to do things in their best interest.

Severing the joint tenancy so that you inherit 50% of the value of the house on the first death isn't in the survivor's interest.

I think you might be taking the view that because it could benefit the OP, it's not in the parents interest and I understand why you'd take that view as typically when people do this, it's to their benefit but to the parents detriment.

But in this case, I don't see that issue. It would be (for example) within the mums interest to sever the tenancy so that the asset rightfully goes to her  or her estate (where it can be used for care home fees, debts, funeral costs or even paid out to the mums beneficiaries) and does not pass to her ex-husband. This reflects what their wishes were at the time of divorce from what OP has said. 

Plus two parties don't need to agree to sever a tenancy. Only one party needs to write to the other to inform them the tenancy is severed. So OP doesn't need to wait till he has power to act for his dad, he can do it now. 

noclaf

Thanks unholyangel, just to add there was a specific clause in mum's will to the effect that my father "is excluded from the will and does not benefit at all from her estate". 

unforeseen

If one of them needed care, would it be seen as deprivation of assets as it would limit council claw back to 50% instead of the full bill when other owner dies?

At this point in their lives there is no benefit to either parent in severing the tenancy so I fail to see how somebody with POA could do it as it achieves nothing as far as I can see

Mojisola

noclaf said:

there was a specific clause in mum's will to the effect that my father "is excluded from the will and does not benefit at all from her estate". 

A property that is jointly owned doesn't become part of the estate of the first to die. 
Definitely get legal advice about this. 

noclaf

Mojisola said:

noclaf said:

there was a specific clause in mum's will to the effect that my father "is excluded from the will and does not benefit at all from her estate". 

A property that is jointly owned doesn't become part of the estate of the first to die. 
Definitely get legal advice about this. 

Will do, it passes to the surviving joint owner right?  Given this goes back over 20 years back, is there anything I can check with the solicitors on regarding whether there was a severance of the tenancy? (After I have deputyship for father too as I assume with out it not much else I can do.

Mojisola

noclaf said:

Will do, it passes to the surviving joint owner right?  Given this goes back over 20 years back, is there anything I can check with the solicitors on regarding whether there was a severance of the tenancy? (After I have deputyship for father too as I assume with out it not much else I can do.

Has the house ever been registered with the Land Registry?  If not, there may be something with the deeds.

If it has been and the LR was notified, there should be a restriction saying "No disposition by a sole proprietor..."

If the house isn't registered, it would be worth doing a voluntary first registration once you have both deputyships.

noclaf

It's registered with LR but looks like there were no updates to restrictions or anything affecting right of disposal. Still mentions both parents names as Proprietor under "Title Absolute".
Based on documentation I've seen it seems that while a severance was requested by my mother and forms sent by her solicitor at the time asking for her signature on the notification, she did not complete/sign them and send back.So not sure if anything further can be done on that. I don't know why it was never completed, either didn't realise or personal circumstances at the time..possibly the latter.