Will preparation and joint tenancies
BY SOPHIE DUFFY AND CHARU STEVENSON – MAR 08, 2024 8:25 AM AEDT
Snapshot
- Joint tenancy ownership may prevent the transfer of property interests under a will, rendering the will incapable of giving effect to testamentary intention.
- When preparing wills, solicitors should investigate, advise on and, if instructed, sever joint tenancies.
Where a solicitor is instructed to prepare a will involving the disposition of real property, it is prudent to investigate the type of ownership and whether the real property is owned by the testator as a joint tenant.
Joint tenancy carries with it a right of survivorship which means that on the death of one owner, the second owner gains full ownership of the property. When preparing a will for a client, the type of ownership should be identified and care should be taken to ensure that any joint tenancy is severed prior to the testator’s death. Courts have held that a solicitor’s role can extend to advising on and severing joint tenancies where applicable, and failure to make the necessary inquiries can result in a claim against the solicitor by disappointed beneficiaries.
Professional negligence claims can arise in situations where no advice was provided, the advice was not recorded and is disputed, and where the solicitor received instructions, but steps to sever the joint tenancy were not taken promptly or effectively.
This article originally appeared on lsj.com.au