Analysis
Angela and John Dunbabin purchased a property known as 29 Beverley Place, Springfield, Milton Keynes (the property) in 1983. The conveyance was silent as to the beneficial interests though it contained a declaration that either of the purchasers could give a valid receipt for capital money arising on a disposition of land. With the assistance of Terry Oldfield, a professional will writer, they executed ‘mirror’ wills giving their own share of the property to trustees upon trust for sale and to hold the net rents and profits and the net income from the sale proceeds in trust for the other during their life; after the other’s death, these would be held upon the trusts and with and subject to the powers and provisions thereinafter declared concerning their residuary estate. The residuary estate was held on trust for the surviving spouse or in default for such of their four sons as should survive the deceased. Angela and John Dunbabin signed a side letter addressed to their four sons and explaining ‘that after the first death half of the house goes into trust for the four sons, and the survivor keeps whatever is left’.
In the event which occurred, Angela died first on 27 December 2016. John then made a new will dividing his residuary estate as to three quarters for one of his sons (the defendant) and the remaining quarter equally between the other three sons. John died on 4 April 2020 and probate was granted to the defendant on 2 May 2020. The defendant, to whom the legal estate had devolved, registered the legal title to the property on 6 January 2021. It was then sold at a sale price of £500,000 in March 2021.
The claimants (the Dunbabins’ other two surviving sons and their other son’s widow and son) claimed that the beneficial joint tenancy which was presumed to have arisen on the conveyance to Angela and John Dunbabin was severed so that thereafter they held beneficial interests in the property as tenants in common in equal shares, with the result that, on Angela’s death, her half share passed under the terms of her will to the four sons in equal shares. The defendant claimed that there was no severance of the beneficial joint tenancy with the result that the entire beneficial interest in the property passed by survivorship to John and consequently he inherited three quarters of its value as part of the residuary estate.
Held (allowing the claim):
It was not disputed that there was a presumption that equity follows the law and that therefore Angela and John Dunbabin held the legal estate in the property on trust for themselves as beneficial joint tenants. No notice of severance had been put in evidence but its physical absence was not fatal to the claim that severance had been effected by such a notice. It was simply a question of fact whether the court was satisfied on the evidence that the notice had in fact been signed and given in accordance with s36(2) of the Law of Property Act 1925. Terry Oldfield’s evidence as to his usual practice to advise his clients to sever the beneficial joint tenancy coupled with his template for a notice of severance, the existence of a manual record card on which it had been noted that a notice of severance had been signed and the inclusion of the property trust clauses in the wills, was sufficient on the balance of probabilities to find that a notice of severance had been signed by Angela and John Dunbabin. Moreover, the evidence was more than sufficient to establish that on the balance of probabilities they did agree to sever the beneficial joint tenancy at the time of making the wills. Indeed, there was evidence of a course of conduct; in particular, the making of ‘mirror’ wills, which showed that each party made clear to the other that they desired the property should no longer be held jointly but be held in common. It followed, therefore, that Angela’s half share passed on John’s death to their four sons in equal shares.
JUDGMENT HHJ PAUL MATTHEWS: Introduction [1] This is my judgment on a claim brought under part 8 of the Civil Procedure Rules in relation to issues which have arisen in the administration of the estates of Angela and John Dunbabin. The claim form was issued on 18 June 2021, supported by a witness statement from …Continue reading "Dunbabin & ors v Dunbabin [2022] WTLR 917"