Q&As

How is an application for deputyship made when spouses own their property as tenants in common? On making such an application will there ultimately be sufficient individuals for a sale to take place when one spouse dies, without having to make a further application to the Court of Protection? For example, can the executors of the husband sell his share and the deputies of the wife sell her share?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 03/06/2016

The following Private Client Q&A Produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • How is an application for deputyship made when spouses own their property as tenants in common? On making such an application will there ultimately be sufficient individuals for a sale to take place when one spouse dies, without having to make a further application to the Court of Protection? For example, can the executors of the husband sell his share and the deputies of the wife sell her share?

The beneficial ownership of a property can be held by two (or more) people as either joint tenants or tenants in common. Where the equity is held as tenants in common each person has a defined share, whereas equitable joint tenants own the property per muy et per tout—ie each owns the indivisible whole.

Parties who hold as tenants in common can leave their interest to anyone; the interest of a joint tenant will be extinguished by survivorship on death, and the remaining joint tenant or tenants will continue to own the whole with no need for a transfer of the beneficial interest. The legal ownership of the property will always be as joint tenants, with the legal owners holding the property on trust beneficially for the equitable owners in the relevant proportions.

A deputy is appointed by the Court of Protection to enable the management of the affairs of a person who lacks capacity to make decisions for themselves. There are two types of deputy: a health and welfare deputy and a fi

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