PERSONAL LEGAL CONTESTING-CHALLENGING-WILL
Severing a Joint Tenancy17/11/2011
The recent case of Quigley v Masterson  EWHC 2529 [CH], was a case that investigated the methods of severing a joint tenancy, where one of the joint owners lacked mental capacity. In summary, Mr Pilkington and Mrs Masterson had cohabited for more than 20 years. They bought a property together which was held as beneficial joint tenants. This meant that if one of them passed away, the property would pass automatically by survivorship to the survivor. However in 2001, their relationship ended and Mrs Masterson moved out. Mr Pilkington was advised as a result of the separation to sever the joint tenancy on their property, by serving Mrs Masterson with a notice of severance.
Section 199 of the Law of Property Act 1925 states that in order to serve someone with a notice of severance they must either:
- Leave it at the last known place of abode or business in the UK of the person to be served; or
- Send it by registered post to the person to be served at their place of abode or business.
Mr Pilkington’s solicitors did not serve notice of severance on Mrs Masterson in accordance with the Act. By this time Mr Pilkington was suffering from dementia and had to move into residential care. He therefore needed to sell the property that he jointly owned with Mrs Masterson to pay for his care. He had not appointed anyone to be his power of attorney and as a result the Court appointed his daughter, Mrs Quigley to be his deputy. Before any action was taken to sell the house, Mr Pilkington passed away. The issue was whether the joint tenancy had been severed.
The notice of severance had not been served correctly, however serving notice is not the only way to achieve severance. It is possible to sever a joint tenancy by way of one of the following:-
- An act of any one of the persons interested acting upon his own share.
- Mutual agreement. A course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.
The Court held that there could be no course of dealing, or common intention in favour of severance, because Mr Pilkington himself lacked capacity and his daughter Mrs Quigley had no authority to speak, or act on his behalf, until she was appointed his deputy. Once she was appointed deputy, she would then have had the authority to decide how the proceeds of sale of the house should be divided, but Mr Pilkington died before this could happen.
The question was then raised whether Mrs Masterson’s own application to the Court of Protection opposing Mrs Quigley’s application in relation to the sale of the house gave unambiguous notice of her desire to sever the joint tenancy. It was held by the Court that it did.
The next question was whether notice had then been given to Mr Pilkington as required. Mrs Masterson’s application was not served on Mr Pilkington in any of the ways submitted, nor could it be treated as having been served on Mrs Quigley, because at that time she did not have the legal authority to be acting on behalf of her father. However the position changed when Mrs Quigley was appointed deputy of her father’s Estate by the Court, at that point she had sufficient authority to receive notice of severance. It was held that because she knew about Mrs Masterson’s application the notice could be treated as having been given to her for the purposes. As a result, it was held that severance of the joint tenancy had taken place.
If you have any questions regarding the contents of this article, or have a case of your own that you would like to discuss with one of our legal advisors, then please do not hesitate to contact Tiffany Wiggett of Tollers Solicitors 01604 258558 or alternatively at firstname.lastname@example.org.Related Staff Members: Tiffany Wiggett