Kinch v Bullard | |
---|---|
![]() | |
Court | High Court, Chancery Division |
Full case name | J Kinch and C N Willett as Executors of Bryan Johnson deceased v Executors of Mrs Johnson deceased |
Decided | 27 July 1998 |
Citation(s) | [1998] 4 All ER 650 [1999] 1 WLR 423 [1999] 1 FLR 66 |
Case history | |
Prior action(s) | none |
Subsequent action(s) | none |
Case opinions | |
The notice was intended at the time and was effective. The fact it was never read and destroyed after delivery by the sender is irrelevant. | |
Court membership | |
Judge(s) sitting | Mr Justice Neuberger (Neuberger J) |
Keywords | |
Co-ownership; severance of joint tenancy (s.36(2) Law of Property Act 1925); postal rule; letter never read |
Kinch v Bullard [1998] 4 All ER 650 is an English land law case, concerning co-ownership of land and an act of severance of a joint tenancy, whether caught by the deemed-delivered provisions of the common law postal rule.
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.
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]
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.
In common law and statutory law, a life estate is the ownership of immovable property for the duration of a person's life. In legal terms, it is an estate in real property that ends at death when ownership of the property may revert to the original owner, or it may pass to another person. The owner of a life estate is called a "life tenant".
Probate is the judicial process whereby a will is "proved" in a court of law and accepted as a valid public document that is the true last testament of the deceased, or whereby the estate is settled according to the laws of intestacy in the state of residence of the deceased at time of death in the absence of a legal will.
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.
In property law, a concurrent estate or co-tenancy is any of various ways in which property is owned by more than one person at a time. If more than one person owns the same property, they are commonly referred to as co-owners. Legal terminology for co-owners of real estate is either co-tenants or joint tenants, with the latter phrase signifying a right of survivorship. Most common law jurisdictions recognize tenancies in common and joint tenancies.
Forced heirship is a form of testate partible inheritance which mandates how the deceased's estate is to be disposed and which tends to guarantee an inheritance for family of the deceased.
Lloyds Bank plc v Rosset[1990] UKHL 14 is an English land law, trusts law and matrimonial law case. It specifically deals with the translation into money of physical contributions from a cohabitee or spouse, under which its principles have been largely superseded.
The Inheritance Act 1975 is an Act of the United Kingdom Parliament concerning inheritance in England and Wales. It has been amended, for example to take into account civil partnerships.
Street v Mountford[1985] UKHL 4 is an English land law case from the House of Lords. It set out principles to determine whether someone who occupied a property had a tenancy, or only a licence. This mattered for the purpose of statutory tenant rights to a reasonable rent, and had a wider significance as a lease had "proprietary" status and would bind third parties.
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is usually seen as the most important part of English property law. Ownership of land has its roots in the feudal system established by William the Conqueror after 1066, and with a gradually diminishing aristocratic presence, now sees a large number of owners playing in an active market for real estate.
The South African law of succession prescribes the rules which determine the devolution of a person's estate after his death, and all matters incidental thereto. It identifies the beneficiaries who are entitled to succeed to the deceased's estate, and the extent of the benefits they are to receive, and determines the different rights and duties that persons may have in a deceased's estate. It forms part of private law.
Williams v Hensman (1861) is an English trusts law case.
Nielson-Jones v Fedden [1975] Ch 222 is an English land law case, concerning co-ownership of land: specifically whether a settlement agreement between spouses or memorandum, vaguely worded amounted to "words of severance" as effective under section 36(2) Law of Property Act 1925. If so these are words which would render the parties tenants in common in equity.
Re Draper’s Conveyance [1967] is an English land law case, concerning co-ownership of land.
Harris v Goddard [1983] 3 All ER 242 is an English land law and matrimonial law case, concerning co-owned land between spouses and finding as to the effect of a divorce petition.
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.
Prest v Petrodel Resources Ltd[2013] UKSC 34, [2013] 2 AC 415 is a leading UK company law decision of the UK Supreme Court concerning the nature of the doctrine of piercing the corporate veil, resulting trusts and equitable proprietary remedies in the context of English family law.
Hanchett‐Stamford v Attorney‐General[2008] EWHC 330 (Ch) is an English trusts law case, concerning the destination of property that is held by unincorporated associations when they wind up. The High Court applied the view that while the association exists, assets are held jointly by the members but according to the terms of the association contract, and when the association ends any surplus funds go to those who were members of the association at the moment of its dissolution.