Joint Ownership (Joint Tenants)
When property is owned jointly with another person as joint tenants (as is often the case with spouses) the property passes from one to the other automatically on death. This is known as the doctrine of survivorship. So, if a couple owned their own home as joint tenants and one of them died, the surviving spouse would automatically become the sole owner of the property.
Joint Ownership (Tenants-in-Common)
Property can also be owned as’ tenants-in-common.’ With a tenancy in common, property is held by each of the owners in distinct shares which they can give away during their lifetime. In the event of death, the shares will pass under the deceased co-owner’s Will or in accordance with the laws of intestacy if they die without leaving a valid Will.
So, where a couple owned their own home as tenants-in-common and one of them died leaving a valid Will, the Executors of their estate would need to look at the Will to determine who would inherit their share. The share would not pass to the surviving co-owner automatically. Couples who have children from previous relationships often elect to own their property in this way so that they can protect their share of the property for their own children.
What happens when the order of death is unclear and property is owned as Joint Tenants?
Section 184 of the Law of Property Act 1925 sets out the presumption of survivorship in situations where two or more people have died and the circumstances of those deaths make it ‘uncertain’ who survived who. The presumption is that the older person of the two will have died first.
The Presumption that the Eldest died first (even if that is not the more reasonable conclusion)
In the case of Chillingworth -v- Bate [1947] 2 All E.R. 418 it was decided that to reverse the presumption and find that the younger had died first, there must be grounds which so far outweigh the presumption that the presumption can be ignored. The fact that the more reasonable conclusion is that the elder survived the younger would not be sufficient.
Why does it matter?
As I mentioned at the start of this post, there has been recent High Court case called Scarle -v- Scarle [2019] EWHC 2224 (Ch). This case involved a couple who had died of hypothermia in their home and it was unclear who had survived who. The couple each had a child from a previous relationship.
As Mr Scarle was the elder of the two, he was deemed to have passed away first and so his assets would have passed to his wife. The combined assets would then have passed through Mrs Scarle’s Will to her daughter.
Proceedings were issued by the husband’s daughter who claimed that the presumption in s. 184 of the Law of Property Act did not apply because the order of death was not uncertain. She claimed that, with expert evidence, it was clear that her father had outlived his wife.
However, the circumstances of the case were complex. Although the expert evidence was that it was more likely that the wife had died first, there were too many variables for there to be a solid conclusion. The temperatures of the rooms that the bodies were found in and the effect on the rates that the bodies might have decomposed was not clear. So, the order of death was found to be uncertain and the presumption applied.
The result was that the wife was presumed to have outlived her husband and so their combined assets passed through her Will.
If you would like advice on Wills and what would happen to your assets after death, please feel free to give us a call on 01332 364436 and we will be happy to help.
