I want the kids to get it

What to do if you have forgotten to sever the joint tenancy, but you still want your kids to get your half of the house

Often, where there has been a second marriage, the parties to it wish to leave their respective shares in the matrimonial home to the children from their first marriage. In such circumstances, the parties’ wills will often provide that the survivor can continue to live in the property until their death or remarriage.

There can be tax implications in such an arrangement, which will be the subject of a different article.

When making a will, many people do not appreciate that a significant amount of their estate can pass “outside the will”.

The principal example of this is the matrimonial home. Most couples will own a property as joint tenants. This means that on the death of one of them, the property automatically passes to the survivor. This is an example of property passing outside the will.

Regardless of what you say in your will, the property will automatically pass to the surviving joint tenant, if you have not severed the joint tenancy.

You can sever a joint tenancy by written notice. Alternatively, when the property is purchased, the parties can decide to hold it as tenants in common. This means that they each have a distinct share in the property which they can then leave by will to whoever they wish.

What happens, however, if you forget to sever the joint tenancy?

The strict legal position is that if the tenancy has not been severed, then the property passes outside the will and you have nothing to leave to the children.

The law of trusts may, however, come to your rescue. If it can be established that there was a clear common intention between the parties that their share in the property would eventually pass to their children, then it may be possible to show that there is a constructive trust in existence.

In order to show a common intention, you would need to be able to establish the following:

    1. The parties have made wills in similar terms providing for their respective shares in the house to be left to their children, subject to the survivor having the right to continue to live in the property during their lifetime.
    2. Apart from what was set out in the wills, the parties had discussed the matter and agreed such an arrangement between themselves.
    3. That neither party had changed their mind before their death. Or, in a situation whether they had changed their mind, they had not communicated it to the first person to die.

On the death of the first spouse, have the property put in the names of the surviving spouse and the children of the deceased spouse. Or, at the very least, get the surviving spouse to acknowledge the existence of the trust in writing.

All cases will always turn on their own facts and circumstances. Where a joint tenancy has not been severed, all may not be lost.