Joint tenancy - severance question

Dandelion6

Hi, I was hoping that someone could help clear up a matter arising from an old FE1 question (April 2008).

Facts in the question are that Daniel, James, Priscilla and Anthony are joint tenants. Priscilla dies and a couple weeks later Anthony is declared bankrupt.

The Examiner's report states that Priscilla's shares went to Daniel and James who now have a 3/8th share.

I'm not clear on why Priscilla's share wouldn't have gone equally to Daniel, James and Anthony (with Anthony's subsequently vested in the trustee of his bankruptcy) - given that she died before Anthony's share was severed. Does a severance only affect the share that the party had when the joint tenancy was created? Or is there something else that I'm missing?

TIA

Tom Young

The cases you want to look at are:

Irwin v Deasy [2006] IEHC 25; and
Judge Mahon & Ors v Lawlor & Ors [2008] IEHC 284 edit: Pages 12 on deal with this.

Tom

dermot_sheehan

I think the issue is that although the legal interest in the bankrupt's property vests in the official assignee from the date of adjudication, the beneficial interest is held on trust for the benefit of the bankrupt's creditors from the date of the act of bankruptcy (weeks before the petition and adjudication).

The joint tenancy is therefore severed in equity, leaving anthony holding 1/4 on trust for his creditors and daniel, james and priscilla holding the remaining 3/4 jointly.

when priscilla died, daniel and james would hold the remaining 3/4 as surviviors of the joint tenancy. If they severed this tenancy they each would have 3/8ths.

Dandelion6

gabhain7 wrote: »

the beneficial interest is held on trust for the benefit of the bankrupt's creditors from the date of the act of bankruptcy (weeks before the petition and adjudication).

Ah that would certainly explain it. Thanks.

Lughaidh

On the subject of Joint Tenancies, does anyone know if you have two joint tenants (Husband and Wife) who are severing the tenancy so they hold the property as tenants in Common (one has 1/4 and the other 3/4) do you need to include a trustee for the purposes of the statute of uses?

dermot_sheehan

Before the 2009 act you would use a conveyance to a trustee which then devolves on the beneficiary under the statute of uses to unilaterally sever a joint tenancy by breaking one of the unities.

Since the 2009 act, you can no longer sever a joint tenancy unilaterally (section 30). You would just execute a deed by both joint tenants turning the tenancy into a tenancy in common.

Lughaidh

Thanks Gabhain, Just one point the severence of the tenancy is not unilateral, both parties are party to the severence of the tenancy, does that make any difference? can I ignore the Statute of uses?

Lughaidh

hillviewfarm

Question. If two people have a joint tenancy agreement, can one of these parties will their half to someone else?