Facts
Mr and Mrs Johnson, beneficial joint tenants (of the two forms of joint ownership the standard arrangement for spouses co-owning land), were divorcing. Mrs Johnson was terminally ill. Mrs. sent Mr. a letter by ordinary first-class post stating her intention to sever her interest. It was delivered, but before seeing it Mr. suffered a heart attack. Mrs. realised she was likely to outlive him, survivorship would then operate passing the property to her completely, so she destroyed the letter. He (indeed) died a few weeks later and she died a few months later.
His executors, consulting with the beneficiaries, chose to sue her executors to decide whether the notice severed the form of ownership (if so, then his last Will and Testament would chiefly determine the fate of his 50% stake in the property as long as it made adequate provision for all dependants under the relevant family/dependency Act of 1975). [n 1] [1] If not, the Will could have no effect on the death estate; the property would become hers absolutely, subject to any dependency of his or clear unreasonableness. [1]
The law was unclear.
Judgment
Neuberger J held that the notice was effective. He did not take counsel’s argument for her estate that because Mrs. no longer, at that time, ‘desires to sever the joint tenancy’, the statutory precondition for valid notice was not there under section 36(2) (of the Law of Property Act 1925). This, he held, was wrong because the function of section 36(2) was not to bring the court to enquire into the parties’ state of mind. He said: [2] [3]
I reach this conclusion based on the proper construction of section 36(2). However, it appears to me that it is also correct as a matter of policy. If it were possible for a notice of severance or any other notice to be ineffective because, between the sender putting it in the post and the addressee receiving it, the sender changed his mind, it would be inconvenient and potentially unfair. The addressee would not be able to rely confidently upon a notice after it had been received, because he might subsequently be faced with the argument that the sender had changed his mind after sending it and before its receipt. Further, as I have already mentioned, it is scarcely realistic to think that the legislature intended that the court could be required to inquire into the state of mind of the sender of the notice in order to decide whether the notice was valid. [2]
Obiter dictum
But, explained Neuberger J, it would probably be otherwise if a withdrawal was communicated before a notice was given (or deemed given), applying Holwell Securities Ltd v Hughes . This was just, however, ‘no more than a tentative view' — an obiter dictum (other words and side-opinions of the court).
A will or testament is a legal document that expresses a person's (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. For the distribution (devolution) of property not determined by a will, see inheritance and intestacy.
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Estate planning is the process of anticipating and arranging for the management and disposal of a person's estate during the person's life in preparation for a person's future incapacity or death. The planning includes the bequest of assets to heirs, loved ones, and/or charity, and may include minimizing gift, estate, and generation-skipping transfer taxes. Estate planning includes planning for incapacity, reducing or eliminating uncertainties over the administration of a probate, and maximizing the value of the estate by reducing taxes and other expenses. The ultimate goal of estate planning can only be determined by the specific goals of the estate owner, and may be as simple or complex as the owner's wishes and needs directs. Guardians are often designated for minor children and beneficiaries with incapacity.
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Re Dennis [1996] Ch 80 is an English land law case, concerning co-ownership of land.
Burgess v Rawnsley [1975] Ch 429 is an English land law case, concerning co-ownership of land, and the conditions for severance of a joint tenancy in a circumstances where there is not a domestic relationship, that is two or more owners living together, co-occupancy.
Re K [1985] Ch 180 is an English land law case of acts of severance of a joint tenancy.
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