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Re Wilford’s Estate (1879) 11 Ch D 267

Co-ownership of land – Severance – Mutual Agreement – Course of Conduct

Facts

Two sisters jointly owned a property as joint tenants.  They agreed between each other to both make a will in which they would leave their property to the surviving sister in the event that one of them died.  One of the sisters then died.  The deceased sister’s estate applied to the court for a ruling on whether or not the surviving sister was to be considered a joint tenant and so entitled to the right of survivorship over the property.

Issues

Whether the sister’s agreements to make a will disposing of their interests in the land jointly owned was enough to amount to a ‘course of conduct’ indicating that the parties were dealing with their property as tenants in common, or whether or not the agreement to make wills leaving the property to each other in this way was itself a ‘mutual agreement’ to sever the tenancy.

Held

The tenancy was severed.  The sisters’ agreement to make a will disposing of the property in the way they had determined showed a clear intention that the parties had agreed to sever their joint tenancy.  Furthermore, the making of wills distributing their property in this way also amounted to what could easily be seen as a ‘course of conduct’ that showed that the parties were indeed mutually dealing with their property as tenants in common rather than as joint tenants.  Following Williams v Hensman (1861) 70 E.R. 862 this was a clear way in which a joint tenancy could properly be severed and so the court had no difficulty ruling that the parties had agreed to do so.


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