Re Draper’s Conveyance [1969] 1 Ch 486; [1967] 3 All ER 853
Co-ownership of land, severance and survivorship.
Facts
A husband and wife held their matrimonial home as joint tenants. During their divorce proceedings, the wife issued a summons under section 17 of the Married Women’s Property Act 1882 seeking a sale of the house. Her supporting affidavit asked for the proceeds to be divided equally.
The divorce became final in March 1966. An order declared the wife entitled to a half interest and directed a sale. The husband died in January 1967 while the house remained unsold. The wife then claimed the whole beneficial interest by survivorship.
Issue
Had the wife’s summons and supporting affidavit severed the beneficial joint tenancy during her husband’s lifetime?
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Decision and reasoning
Plowman J held that they had. The summons, served on the husband, and the affidavit showed that the wife wanted the property sold and the proceeds divided into equal shares. That intention was inconsistent with the beneficial joint tenancy continuing.
The severance resulted from those documents, not from the later court order. It was therefore unnecessary to decide whether the court itself had power under the 1882 Act to alter the parties’ ownership rights.
The wife could not take the entire beneficial interest by survivorship. The beneficial proceeds were held for her and her deceased husband’s estate as tenants in common in equal shares.
