Roman Kubiak discusses the recent decision of Dunbabin v. Dunbabin [2022] EWHC 241(Ch), in which the court found that a joint tenancy had been severed despite the absence of a notice.

Disclaimer: although this is a case in which my colleagues and I acted for the successful claimants I thought it worth discussing as it raises some interesting legal points, not often addressed in the courts but which are frequently seen in practice.

By way of background, Angela and John Dunbabin were married for over 60 years. They had four sons, Adam, Michael (who, by the time the claim was heard, had passed away), Simon and Timothy.

In 1983 they purchased a property in Milton Keynes which remained unregistered until 2021.

The presumption, absent an express declaration, is that the property was held by them on a beneficial joint tenancy (see Stack v. Dowden [2007] AC 432 at [68]).

The couple made mirror wills in 2003 and then later in 2008, each of which purported to deal with Angela and John’s respective shares of the property and, broadly, provided for the surviving spouse to remain in the home for life with their respective shares to pass to their four sons in equal shares on each death.

Following Angela’s death in 2016, John made a new will in 2019 leaving 75% of his estate to Simon, with the remaining 25% split between the remaining three sons. As John had been occupying the property, no steps had been taken until his death to administer Angela’s estate, which ostensibly, the claimants argued, comprised her half share in the property.

The key issue which came before HHJ Matthews sitting in the High Court in Bristol was therefore what proportion of the property comprised each of Angela and John’s estates and, thus, the respective underlying beneficial interests.

Adam, Timothy and Michael’s personal representatives argued that, by making their mirror will, their parents had essentially acted so as to sever the beneficial joint tenancy over the property on terms that they held the legal title as joint tenants upon trust for themselves as tenants in common in equal shares. This, they asserted, meant that half the property fell to be distributed under Angela’s will under which they, collectively, received 75%.

They also argued that, in any event, a notice of severance of joint tenancy had been validly served but that it had most likely been misplaced or lost.

Simon asserted that no severance had taken place such that the entire beneficial interest in the property passed to John, entitling Simon to 75% of the value of the property and the remaining brothers to just 25%.

Ultimately, HHJ Matthews held that the joint tenancy had been severed on three grounds:

1. By Notice

HHJ Matthews held that on the balance of probabilities a notice of severance was served, despite the parties being unable to locate it given that “it is just one sheet of paper, and can have become misfiled or even accidentally destroyed”.

2. By Agreement

Citing Re Wilford’s Estate (1879) 11 Ch D 267, HHJ Matthews held that the various wills, each of which, including John’s 2019 will, purported to deal with their “share” of the property, coupled with an explanatory letter accompanying the mirror wills all pointed to an agreement to sever the joint tenancy.

3. By Course of Conduct

Under this head, and emphasising that this requires mutuality, HHJ Matthews concluded that “the evidence satisfies me that there was a course of conduct (in particular, the making of the mirror wills) which showed that one party (indeed, each party) made clear to the other that that one desired that their property should no longer be held jointly but be held in common”.

While this case does not create new law, Dunbabin solidly affirms the legal position that while, absent a declaration of trust, there is a legal presumption that two or more parties who purchase property together do so as beneficial joint tenants in equity, and despite the absence of a formal notice of severance, it is still possible to demonstrate that such a severance took place on one of the above grounds.

As with all such cases, each case turns on its own facts. Here, the key evidence was the couple’s shared decision to make mirror wills each seeking to leave a distinct share of the property to their sons, coupled with the evidence of the will writer who was cross examined by Simon acting as a litigant in person about the likely advice around those wills.