Avoiding property ownership disputes upon death

However, several cases, including a very recent case heard in the High Court in Bristol, have considered alternative ways in which joint tenancies may be severed – specifically through mutual agreement between co-owners or through a “course of dealing” which suggests an intention for property to be held on a tenants in common basis. 

Estate planning and the case of Dunbabin v Dunbabin 

Given the potential impact upon inheritance of property, beneficial ownership is an important issue to consider as part of estate planning.

It is not uncommon, for example, for a couple to agree to sever a joint tenancy at the time of making wills.

This decision could be made for a variety of reasons, including a desire to protect assets from future care costs or the desire to ring-fence an interest in property for certain beneficiaries.

For example, a couple may decide that, rather than their interest in property automatically passing to their partner, they will convert the ownership to one of tenants in common and then each will make a will leaving their interest in the property within a trust – first for the benefit of their surviving partner to enable them to continue living in the property, but ultimately to pass to other named beneficiaries on that partner’s death. 

Sadly, when it comes to money, my experience is that matters are often not so straightforward.

Without steps taken to ring-fence assets in this way, the surviving partner could make a new will after the first partner’s death, changing the way that their property is left on the second death. 

This is an issue I have seen on numerous occasions, often where a couple, each with children from a previous relationship, make so-called 'mirror wills'.

These wills may simply leave the estate to the surviving partner on the basis that they can trust that partner to 'do the right thing' and ultimately leave their estate equally between both sides of the family. 

Sadly, when it comes to money, my experience is that matters are often not so straightforward.

If that surviving partner later makes a new will, cutting out their late partner’s children, there may not be a great deal that those disappointed beneficiaries can do. 

A similar issue arose in the case of Dunbabin v Dunbabin, where the question before the court was whether there was sufficient evidence to establish that the beneficial joint tenancy had been severed.

This question was key given the impact that the outcome would have on the inheritance to be received by members of the Dunbabin family.