Q&As

A couple (A and B) made Wills including a life interest trust in their property and they correctly severed the joint tenancy. A and B then sold and purchased a new property intending to own it as tenants in common, unaware that the conveyancers registered it as joint tenants. B has died and A has lost capacity and has moved into a care home. A and B's children, as attorneys for A (and executors of B's estate), have sold the property, without realising that the property was held as joint tenants. Is proof of A and B's intention to own the property as tenants in common sufficient to counter the otherwise automatic passing of B's interest to A by survivorship? Is the 50% of the property proceeds which was attributed to B's interest available to the local authority in relation to A's care home fees? What remedy might there be?

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Produced in partnership with Lynne Counsell of 9 Stone Buildings
Published on LexisPSL on 10/06/2021

The following Private Client Q&A produced in partnership with Lynne Counsell of 9 Stone Buildings provides comprehensive and up to date legal information covering:

  • A couple (A and B) made Wills including a life interest trust in their property and they correctly severed the joint tenancy. A and B then sold and purchased a new property intending to own it as tenants in common, unaware that the conveyancers registered it as joint tenants. B has died and A has lost capacity and has moved into a care home. A and B's children, as attorneys for A (and executors of B's estate), have sold the property, without realising that the property was held as joint tenants. Is proof of A and B's intention to own the property as tenants in common sufficient to counter the otherwise automatic passing of B's interest to A by survivorship? Is the 50% of the property proceeds which was attributed to B's interest available to the local authority in relation to A's care home fees? What remedy might there be?
  • Joint tenancy/tenancy in common
  • Intention to own as tenants in common
  • Care home fees and B’s 50% interest in the property
  • Remedies

A couple (A and B) made Wills including a life interest trust in their property and they correctly severed the joint tenancy. A and B then sold and purchased a new property intending to own it as tenants in common, unaware that the conveyancers registered it as joint tenants. B has died and A has lost capacity and has moved into a care home. A and B's children, as attorneys for A (and executors of B's estate), have sold the property, without realising that the property was held as joint tenants. Is proof of A and B's intention to own the property as tenants in common sufficient to counter the otherwise automatic passing of B's interest to A by survivorship? Is the 50% of the property proceeds which was attributed to B's interest available to the local authority in relation to A's care home fees? What remedy might there be?

We have assumed that the children of A and B are executors of B's estate/trustees of B's Will trust and attorneys for A under a registered lasting power of attorney.

Joint tenancy/tenancy in common

A joint tenancy is the default position where the other form of ownership, namely a tenancy in common, is not specified. If this was a joint tenancy, the new property would have passed to A by survivorship on B's death regardless of the

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