Williams v Hensman
A joint tenancy in equity can be severed by an act operating on a joint tenant's own share, by mutual agreement, or by a course of dealing showing a common intention to sever.
Facts
A testator left money on trust for his children as joint tenants. Some of the children received advances from the trustees out of their shares, and the question arose whether the joint tenancy had been severed so that each child held a separate share as a tenant in common, or whether the right of survivorship still applied.
Legal principle
Page Wood V-C set out the three ways in which a joint tenancy may be severed. First, by an act of any one of the persons interested operating upon his own share, such as selling or mortgaging it. Second, by mutual agreement between the joint tenants. Third, by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. He said that it would not be enough for one joint tenant to declare his intention to sever, without more. Section 36(2) of the Law of Property Act 1925 later added a fourth method, of written notice.
Related cases on co-ownership and trusts of land
- Bank of Ireland Home Mortgages Ltd v Bell [2001] 2 FLR 809
- Barca v Mears [2004] EWHC 2170 (Ch)
- Bull v Bull [1955] 1 QB 234
- Burgess v Rawnsley [1975] Ch 429
- Re Citro (A Bankrupt) [1991] Ch 142
- Re Draper's Conveyance [1969] 1 Ch 486
- First National Bank plc v Achampong [2003] EWCA Civ 487, [2004] 1 FCR 18
- Goodman v Gallant [1986] Fam 106
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