Severance of joint tenancy

Severance of joint tenancy converts jointly owned property from a joint tenancy into a tenancy in common. It is the step that makes a share of a property capable of being left by will at all.

Why it is necessary#

Under a joint tenancy, the owners hold the whole property together and, when one dies, their interest passes automatically to the survivor by survivorship. The will is irrelevant. A clause leaving "my share of the property" to a trust or to a child simply does not take effect.

Under a tenancy in common, each owner holds a distinct share — often but not always half — which forms part of their estate and passes under their will.

How it is done#

1. A notice of severance is drafted and served on the other joint owner or owners. Severance in England and Wales can be effected unilaterally; the other owner's consent is not needed, though in practice both usually sign.
2. The notice is acknowledged or service is otherwise evidenced.
3. A Form A restriction is registered at HM Land Registry against the title, recording that the property is held as tenants in common.

Step three is the one that gets missed. Without the restriction on the title, conveyancers and the survivor may deal with the property as though the joint tenancy were intact.

When it is used#

Almost always alongside a property protection trust or a life interest trust over the family home. Occasionally on separation, where a couple no longer wish the survivor to inherit automatically.

The common failure#

Drafting the trust and never registering the severance. The client pays for an arrangement that does nothing, and nobody discovers it until the first death — by which point the property has passed by survivorship and it cannot be fixed.

Willo drafts the notice alongside the trust for exactly this reason. See trust drafting software.