Applications To Sever Joint Tenancies For The Purpose Of Inheritance (Provisions For Family And Dependants) Act 1975 Claims

The Inheritance (Provision for Family and Dependants) Act 1975 (Act) provides a child of a deceased with the right to apply to the Court seeking reasonable financial provision from their estate if their Will or the rules of intestacy fail to provide reasonably for their maintenance.

The extent of such claims is limited to the applicant’s reasonable maintenance needs. When considering those needs the Court will not only consider the applicant’s financial needs but also their health, the value of the estate, any obligations owed by the deceased including those to the beneficiaries and the conduct of all parties. If the Court decides it is just for the claim to succeed, the applicant will be awarded with a sum reflecting their reasonable maintenance needs in the circumstances.

In some cases, it may be that the deceased’s estate is insufficient for an award to be made and therefore the applicant has to look beyond the immediate estate assets, such as jointly owned property. Section 9 of the Act addresses the treatment of property held as joint tenants. Ordinarily, jointly owned property passes to the surviving joint owner automatically through the rights of survivorship and will not form part of a deceased’s estate.

Section 9 however, allows the Court to override this automatic transfer, in certain circumstances, allowing for a deceased’s share of that property to be taken into account when making an order in favour of an applicant. If a claim is made under the Act and the Court finds that reasonable financial provision has not been made, it may order the severance of the joint tenancy, effectively converting a deceased’s share into part of their estate.

Background

Application of Section 9 was seen in this recent case. In this case, the Claimant was an adult daughter of the Deceased and sought reasonable financial provision under the Act. The Deceased died in 2022, leaving his entire estate to his wife of 40 years, with whom he had five children. The Claimant was born from a prior relationship and remained unknown to the family until after the funeral. The Claimant was, however, able to prove she shared a relationship with the Deceased which appeared to have been kept secret from the family. The Deceased’s estate was modest, with the main asset being the matrimonial home, which was jointly owned with the Deceased’s wife. Aside from the property, the Deceased left very small cash sums.

The Deceased’s estate made no provision for the Claimant, and the Claimant submitted that the Deceased had promised to support her and provide employment in the UK. Given that the Deceased’s estate was insufficient to make an award, the Claimant included an application for the Deceased’s share of joint property to be clawed back into the Estate by way of Section 9 of the Act.

The Court’s decision

In considering section 9, the Judge declined to exercise the Court’s power on the basis that it would be unjust to sever the joint tenancy of the matrimonial home. The Judge emphasised that the Deceased’s wife had no knowledge of the Claimant’s existence and owed her no obligations. Given the Deceased’s wife’s financial vulnerability, disability, and reliance on the property’s value to restructure her life, it would be manifestly unfair to deprive her of any part of it. Similarly, the Deceased owed minimal obligations to the Claimant, and those obligations would not outweigh those to the Deceased’s wife in the circumstances.

This demonstrates that whilst section 9 of the Act may be a mechanism to recover joint property into a deceased’s estate, in order for an order to be made on that basis, it must be equitable in the circumstances. An applicant is therefore unable to rely on section 9 being invoked automatically and must instead prove it is necessary and just to do so.