Published: Fri, 12 Oct 2018
Williams v Hensman (1861) 70 E.R. 862
Co-Ownership – Severance – Modes of Severance of Joint Tenancy
A fund of money had been bequeathed by a mother, on trust for eight children to be invested in order to create an income that would then be payable to her children on the mother’s death. The children consented to the fund being invested in this way, despite the fact that they were legally minors. At one point however, one of the children had sums advanced to them alone. The other children covenanted not to require the trustee to make up the shortfall to them, and indemnified the trustee against claims, for damage to their interests or other expenses incurred as a result of the advance.
What form of co-ownership in equity did the children have over the fund? Whether or not the beneficiaries were joint tenants of the fund. Whether or not a joint tenancy could be severed by the actions of the tenants. Whether or not this had been severed by their actions.
The will created a joint tenancy between the beneficiaries. This had been severed by the actions of the beneficiaries. There were three ways by which a joint tenancy may be severed. Firstly, an act of one of the persons, operating on their own share. Secondly, by mutual agreement, and thirdly, where there is a course of dealing that is sufficient to show that the interests of all the parties were mutually being treated as a tenancy in common. In this case, all the parties had agreed to treat their interest as a tenancy in common and so the joint tenancy had been severed in this way.
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