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Re Denny [1947] L.J.R. 1029

Joint Tenancy – Severance – Course of Conduct – Intention

Facts

Two business partners owned a number of properties which they let out to tenants.  The partners were joint tenants and shared the income through a mutual fund.  The partners took the income from this fund equally, over a number of years.  Both partners were content with the course of dealings, and regarded themselves as being separately entitled to the money.  One of the partners died, and his estate argued that the tenancy had been severed by the parties’ common conduct which indicated that they were in fact tenants in common.  The surviving partner denied this and claimed that the joint tenancy had never been severed, ensuring that he would be entitled to the sum remaining in the fund through the doctrine of survivorship.

Issues

Whether the partners course of conduct had indicated an intention that the joint tenancy be severed and a tenancy in common created.  Whether or not this had been evidenced by the fact that there was evidence to suggest that both of the owners of the fund had regarded themselves as separately entitled to the funds, thereby indicating that the partners were mutually treating the fund as a tenancy in common.

Held

The tenancy had been severed.  By treating the fund as thought they were tenants in common the partners had by their common course of conduct shown an intention to sever the tenancy.  The court also laid down the rule regarding the burden of proof by providing that the party that seeks to allege that the joint tenancy has been severed is required to prove this.  This had been accomplished in this case.


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