Severance of Joint Tenancies: Equity, Alienation, and Court Applications, Study notes of Law

Download Severance of Joint Tenancies: Equity, Alienation, and Court Applications and more Study notes Law in PDF only on Docsity! SEVERANCE OF JOINT TENANCIES IN MATRIMONIAL PROPERTY PETER BUTT* Married couples in Australia often own property joint tenants. Where the parties to the marriage become estranged and are con- templating divorce proceedings, it may be important to consider ways of severing the joint tenancy so that, should one spouse die before the marriage is dissolved, the surviving spouse does not acquire the whole property by right of survivorship. The purpose of this article is to consider appropriate ways of effecting a severance in the light of a number of recent cases dealing with the matter. 1. The Right to Sever Although one of a number of joint tenants cannot defeat the A joint tenancy may be severed in a number of ways. The lo classicus is to be found in the judgment of Sir W. Page Wood, V.- in Williams v. Hensmun: A joint-tenancy may be severed in three ways: in the first pl an act of any one of the persons interested operating upon the jus accrescendi. Each one is at liberty to dispose of his severance depends on an inference of this kind without any ex act of severance, it will not suffice to rely on an intention, respect to the particular share, declared only behind the backs SEVERANCE OF JOINT TENANCIES 569 the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected. . . .' It is clear from this that there are three methods of severing a joint tenancy: (1) by alienation; (2) by agreement; and (3) by a course of dealing. In Williams v. Hensrnan, supra, a fund was bequeathed to A for life, "the principal to go to her children at her death". Thme were eight such children, and there being no words d severance in the &t, they took at law as joint tenants. They had, however, executed a number of documents which showed that they treated themselves as holding as tenants in common. In particular, when one of the eight requested a payment on account of his share, they had joined in a deed indemnifying the trustee against responsibility for overpayment should the fund diminish in the future, such indemnity expressly binding their executors and administrators. It was held that they had entered into this agreement on the implicit understanding that they each had an "interest in the funds". They would not have bound their legal personal representatives had they considered themselves to be holding as joint tenants, for otherwise they would have been biding :heir estates to an obligation while possibly losing all interest in the ?und through their own death.2 It is not entirely clear whether the learned Vice-chancellor regarded the severance as being effected in equity under the second or :hisd category mentioned above. Clearly, the execution of a number of locurnents showed a "course of dealing" within the third category, but :he deed of indemnity itself implied "an agreement among themselves :hat their interests should be treated as held in severalty . . . so as to :xclude the survivorship",5 which would have come within the second :ategory. In a later case, Burgess v. Rawn~ley,~ the Court of Appeal made -eference to the second and third of the above categories. Lord Denning, M.R. observed6 that in distinguishing between the two, Page Nood, V.-C. had shown that a course of dealing "need not" amount o an agreement (express or implied) for severance, from which it may, ~ r h a p s , be inferred that he thought the two categories were not ~ecessarily mutually exclusive. Browne, L.J.6 felt that each was "a eparate categmy". Sir John Pennycuick said that category three was lot a mere sub-heading of category two: 1 (1861) 1 J. & H. 546 at 557-8; 70 E.R. 862 at 867. This passage has een accepted by the Privy Council as an accurate statement of the law: Tan 'hew Hoe Neo v. Chee Swee Cheng (1928) 56 Ind. App. 112 at 115. 2 (1861) 1 J. & H. 546 at 560; 70 E.R. 862 at 868. 3 Zbid. 4 [I9751 Ch. 429. 5 Id. 439. 6 Id. 444. 572 SYDNEY LAW REVIEW although it was said that had the trustee been instructed to register the transfer, "an interesting question would have arisen if the death of the [transferor] had occurred before regi~tratioa."~~ But in the instant case, Murray, J. held, there had been an alteration of the wife's beneficial interest. Her right to dispose of her interest had been diminished by the terms of the Deed of Trust obliging the trustee to abide by an order of the Family Court, and: This limiting of the beneficial interest and the divesting of the legal interest are declared under seal and are followed by a Memorandum of Transfer granting the legal estate to the trustee pursuant to the terms of the Deed, the giving of notice to the husband and attempted registration of the Transfer; clearly, I would have thought, an act of one of the persons interested in a joint tenancy operating upon his own share within the meaning of Williams v. Hensrnan.19 Badcock's case appears to be the only reported example in Australia of severance by transfer to a trustee for oneself. But the method had been recognized as effective in England over two hundred and fifty years ago,2O and there is no reason to doubt its validity. It has been taken a step further in Canada. In Re Mee,2l the husband, shortly after his divorce;, executed a declaration of trust whereby he declared himself a trustee for his infant son with respect to his interest as joint tenant in certain land. The British Columbia Court of Appeal held that no distinction was to be drawn between an alienation direct to the person intended to benefit and an alienation to a trustee (albeit the alienor himself) to hold for the benefit of that person, so long as the trust was completely It was not to the point that the infant could not compel a transfer of the interest during his minority, for the husband had, by the terms of the trust instrument, bound himself to carry out the terms of the trust. Other Canadian cases have since followed Re Mee and permitted severance by declaration of trust in this In the light of these authorities, it would appear that the kind d clause commonly found in maintenance agreements in Australia, whereby husband and wife declare that henceforth they shall hold the matrimonial home in trust for themselves as tenants in common in Issupra n. 16 at 126, citing Dixon J. in Brunker's Case, supra n. 17 at 604-5. 19 (1979) F.L.C. at 78,896. 20Cray v. Willis (1729) 2 P. Wms. 529; 24 E.R. 817: a joint tenant "may sever the joint tenancy by a deed granting over a moiety in trust for himself". 21 (1971) 23 D.LR. (3d) 491. 22 Here, .the trust had &en complete1 constituted and, since no power of revocation was reserved, could not be revo1e.d by the husband. 2aSee Re Sorensen (1977) 90 D.L.R. (3d) 26; Earl V. Earl [I9791 6 W.W.R. 600. SEVERANCE OF JOINT TIENANCIBS 573 equal would be effective to sever the joint tenancy and constitute the parties as tenants in ~ornmon.~"uch a clause would also effect a severance by agreement, in accordance with the principles relating to severance by agreement discussed below. (c) Transfer to oneself The Canadian courts have now introduced the final refinement and held that a joint tenant can sever the joint tenancy by transferring his interest to himself beneficially. In Re Murdoch and Barry26 the wife executed a deed whereby she, as grantor of the first part, granted to herself, as grantee of the second part, her interest in the matrimonial home "TO HAVE AND TO HOLD unto the said Grantee her heirs and assigns, to and for her and their sole and only use for ever". This deed was held sufficient to sever the joint tenancy, as it destroyed the unity of title between husband and wife. Unity of title is one of the so-called "four unities" essential for a joint tenancy, and requires that all joint tenants must take under the same instrument. Godman, J. held that the wife now held her interest under the deed she had executed and not under the deed or document which originally had created the joint tenancy.27 Of course, the validity of such a convey- ance depends upon the statutory provision empowering a person to assure property to himself;2s such a course would not have been available at common law, where a person could not convey to himself except through the medium of a use operating under the Statute of Uses. Although the precise ambit of the statutory provision may not be clear,2O Re Murdoch and Barry would appear to be correctly decided and to provide a simple and convenient method of unilaterally severing a joint tenancy. Indeed, the decision in Re Murdoch and Barry ought not to surprise. Equity has always leaned against joint tenanciestO preferring the certainty and equality of a tenancy in common to the "all or . 24 See, e.g., Broun and Fowler, Australian Family Law and Practice. "Precedents", para. 63-370. 25 Cf. Lea v. Williams (circa 1734), 2 Sugden's Vendors and Purchasers, 1 lth ed., App. 11 16, where it was held that a conveyance by joint tenants to a trustee, without consideration, did not effect a severance. There was, however, no evidence that the conveyance was effected with intent to sever, and the case is consistent with the authorities discussed below that a conveyance by all joint tenants does not sever the joint tenancy. 28 (1975) 64 D.L.R. (3d) 222. 27 Cf. Re Sammon (1979) 94 D.L.R. (3d) 594, where the Ontario Court of Appeal agreed that severance may be effected by transfer to oneself, but held 3n the facts that the attempted severance was ineffective because the deed by which the transfer was attempted had not been delivered. 28 See Conveyancing Act, 1919 (N.S.W.), s. 24. 29See Rye v. Rye [I9621 A.C. 496 at 505-6, 513-4; cf . Note (1962) 36 A.L.J. 45. 30 "Survivorship is looked upon as odious in equity": R. v. Williams (1735) Bunb. 342 at 343; 145 E.R. 694. See also Gould v. Kemp (1834) 2 My. & K. 304 at 309; 39 E.R. 959 at 961. 574 SYDNEY LAW REVIEW nothing" nature d a joint tenancy, and has not been loathe to lend assistance to devices to nullify the right of s u r ~ i v m h i p . ~ ~ 3. Severance by Agreement Joint tenants may sever the joint tenancy by agreement. The agreement must be held commonly by all joint tenants.32 (a) Formal agreement Sometimes, the agreement will be embodied in a formal document, such as a maintenance agreement33 or a separation agreement.34 A clear example is the Canadian case of Re McKee and NationaE Trust Co. Ltd.,3"here a separation agreement provided that the wife was to have exclusive possession of the jointly owned premises on certain conditions; if those conditions were not met, the property was to be sold and the proceeds divided equally between the parties. The agree ment also gave the wife an option to purchase the husband's interest in the premises. It was held that the clear understanding as expressed in the agreement was that each party had, from the date of the agreement, a onehalf interest in any proceeds of sale of the property. This, when considered with the grant d the option, severed the joint tenancy .from 'that One commonly used Australian precedent37 is in similar terms to the agreement in McKee's case and would, it is suggested, be effective to sever the joint tenancy in any property covered by the agreement. By way of contrast, in Bank of British Columbia v. Nelson3* the separation agreement provided that the jointly owned matrimonial home was to be sold, that the proceeds of sale were to be applied towards the discharge of mortgages over the property, and that any surplus should be paid to the wife; by another clause, the spouses renounced any other rights to share in the distribution of each other's estates. This agreement was held not to sever the joint tenancy; it was "a joint agreement by husband and wife for the disbursement of proceeds of their joint interest in the matrimonial home, rather than an agreement for a division of their separate and equal interest^."^^ This decision is difficult to reconcile with McKee's case, 31 See, e.g., Cray v. Willis supra n. 20; Staples v. Maurice (1774) 4 Bro. P. C. 580 at 585; 2 E.R. 395 at 399; Wright v. Gibbons supra n. 9 at 326. 32 Lindgren v. Olson [I9491 2 D.L.R. 353 at 362-3. 33 See, e.g., Broun and Fowler, op. cit. supra n. 24 para. 63-370; Nygh and Turner, Family Law Service, Precedent 2.1. 34 AS in Public Trustee o f British Columbia v. Somers [I9791 6 W.W.R. 763; Paterson v. Paterson [I9801 2 W.W.R. 683, discussed below. 35 (1975) 56 D.L.R. (3d) 190. 36The Court considered, however, that the grant of an option by one join tenant to another does not, of itself, effect a severance: Id. at 196. 37 See Nygh and Turner, op. cit. supra n. 33 Precedent 2.2. 3s (1979) 17 B.C.L.R. 223. 39 Id. 227. There was, on the facts, also no indication of a course of dealin between husband and wife which, taken apart from or together with the separi tion agreement, intimated that the interests had been mutually treated as helc in common. Severance by course of dealing is considered below. SEVERANCE OF JOINT TENANCIES 577 reversion to a joint tenancy upon termination of the agreement. There are precedents for the temporary severance of joint tenancies. For example, there is authority that the grant of a lease for a term of years by one joint tenant works a temporary severance only: it "suspends" the joint tenancy for the duration of the lease, so that the reversion expectant on the lease will pass to the surviving joint tenant but the lessee will remain entitled to the enjoyment of the term.51 There is a Canadian suggestion that a joint tenancy may be. "suspended" for the period during which a judgment debt is registered against the title of one of the joint tenants; the right of survivorship does not operate should the debtor joint tenant die whilst the debt remains registered, but upon discharge of the debt and vacation of the charge the suspension is healed and thereafter the right of survivorship applies.52 There is old authority that an alienation by an infant joint tenant effects only a temporary severance: the infant may, by entering and avoiding the conveyance, restore the joint tenancy.53 Further, in the Tasmanian case of In re Real Property Act 1862, s. 111 (Shannon's T r a n ~ f e r ) , ~ ~ it was held that a temporary severance occurred where the husband was ordered to settle his interest as joint tenant upon his wife (the other joint tenant) dum sola et casta, and where, before the settlement was made, the wife remarried and died; the order effected a severance, due to the destruc- tion of unity of possession, but the severance was temporary only and upon the remarriage of the wife the joint tenancy reunited.55 The short-lived agreement of the Burgess v. Rawnsley type may be another situation where a doctrine of temporary severance is appro- priate. Previous cases involving severance by agreement are of no assistance in this context, as they involved agreements which were relatively permanent, and which had been acted upon by the parties for a number of years.56 (d) Severance by joint application to court? A recent Australian case involving an alleged severance by agreement is In the marriage of Per t~oul is .~~ There it was held that the filing of an application under s. 79 of the Family Law Act 1975 (Cth.), for an order for a settlement of the jointly-owned property by both parties to a joint tenancy, did not effect a severance of the 51 See Wright v. Gibbons, supra n. 9 at 330 per Dixon, J.; Frieze v. Unger [I9601 V.R. 230 at 242-3 per Sholl, J. s2 Re Penn (1951) 4 W.W.R. (N.S.) 452; overruled on another point, Re Young (1968) 70 D.LA. ( 2 4 594. 63 Co. Litt. 337% 337b; Tucker v. Coleman (1885) 4 N.Z.L.R.S.C. 128; cf. Burnaby v. Equitable Reversionary Interest Society (1885) 28 Ch. D. 416. 54 [I9671 Tas. S.R. 245. 66See further on temporary severance, Co. Litt. 188a, 193a. 66 See, e.g., In re Wilford's Estate (1879) 11 Ch. D. 267, at 269; In the Estate of Heys [I9141 P . 192 at 195-6; In re Lansell [I9341 V.L.R. 129 at 134-5, E7 (1980) F.L.C. 75,265. 578 SYDNEY LAW REVIEW joint tenancy by The reason was that, at any time prior to an order being made, the parties could withdraw their applications; severance could only take place at the time the order was made.59 It is suggested, holwever, that Pertsoulis' case should not be regarded as authority for the proposition that in no case where a joint applica- tion is made to the Court under s. 79 can there be a severance until an order has been made. It may well be that the making of the application follows an agreement between the parties to sever the joint tenancy. In such a case, it would be the antecedent agreement which severs the joint tenancy, and not the Court order itself. More- over, it would follow from Burgess v. Rawnsley that once an agree- ment (albeit short-lived) to sever has been concluded, the severance is complete, and subsequent withdrawal of the application could not resurrect the joint tenancy. A related point may be noted here. Where the court makes an order for the settlement of jointly owned matrimonial property, and the order requires a sale or other dealing with the property, there is, of course, no severance at law until the sale or dealing has been effected, and the appropriate assurances executed and (in the case of Torrens title land) registered. Should one of the joint tenants die before these steps have been taken, the survivor takes the whole legal estate. It is now settled, however, that equity will not permit the operation of the order to be thwarted in this fashion, and there will be a severance in equity effected by the court order if that is necessary to ensure that the order is perfected.60 In any case, where the court order is made by consent, the order itself evidences an agreement between the parties to divide the matrimonial property, and there will thereupon be a severance by agreement.61 4. Severance by a Course of Dealing The final method of severance is by a course of dealing sufficient to intimate that the interests of all are mutually treated as constituting a tenancy in common. It is immaterial that the course of dealing is conducted in ignorance of the existence d a joint tenancy: . . . a joint tenancy is a right which any one of the joint-tenants may determine when he pleases; and, if all continue to deal on the footing of their interests not being joint, it would be most inequitable to treat it as a joint-tenancy when all the parties, 6s The Family Court has power, under s. 79, to order that property held under a joint tenancy be held under a tenancy in common: In the Marriage o f Apathy (1977) F.L.C. 76,346 at 76,350; In the Marriage o f Schefe (1978) F.L.C. 77,430. 69 Supra n. 57 at 75,272, applying Public Trustee v. Grivas [I9741 2 N.S.W.L.R. 316 at 322. 6oRe Johnstone [I9731 Qd. R. 347 at 351; Public Trustee v. Grivas, id. 321-2; Gillette v. Cotton [I9791 4 W.W.R. 515; c f . Re Young, supra n, 52, 6' P#blic Trustee v, Grivss, supra nt 59 at 322, SEVERANCE OF JOINT TENANCIES 579 whatheir in ignorance or not, have dealt with their interests as Whether such a c m s e of dealing exists is a matter of evidence. It is not necessary to show a specific act of division of each part of the property "if there has been a general dealing, sufficient to manifest the intention to divide the To establish the requisite course of dealing, there must be an examination of all the indicia of the owners' intentions.e4 (a) Some recent examples There are a number of recent Canadian cases involving matri- monial property which illustrate severance by a course of dealing. In Schofield v. Graham,65 husband and wife had purchased real estate as joint tenants. Following dissolution of the marriage, the wife vacated possession, leaving the husband in sole possession, and bolth parties agreed that the property should be put up for sale and the proceeds divided equally between them. This was held to be a course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. The husband having died before the sale was effected, it was held that the wife was entitled to a one-half interest only as tenant in common. Similarly, in Ginn v. Armstronge6 the wife, having left the jointly owned matri- monial property, wrote to the husband demanding a sale of the property and payment to her of one half of the proceeds of sale, or the purchase by the husband of her share. The husband counter- proposed that she convey her share to her son, and prepared a deed for that purpose which the wife refused to sign. These acts were held to sever the joint tenancy, as they indicated that both husband and wife looked upon the wife's interest as an undivided one-half interest only; that is, they mutually treated their interests as held in common. Their course of conduct was wholly inconsistent with the notion that a beneficial joint tenancy in the property was to continue. In Re W a l t e r ~ , ~ ~ after the wife commenced divorce and partition proceed- ings, negotiations were conducted between the parties' respective counsel in an attempt to reach a settlement of the parties' property rights. Each side obtained valuations of the property and made offers to purchase the other's interest in the property, but each offer was rejected. Shortly before the date set for the hearing of the partition application, the husband died. It was held that the parties by their conduct, as evidenced by the instructions they had given to their 62 Williams v. Hensman (1861) 1 J. & H. 546 at 561; 70 E.R. 862 at 868. See also Flannigan v. Wotherspmn [I9531 1 D.L.R. 768 at 772-3. 68Crmke v. De Vandes (1805) 11 Ves. Jun. 330 at 333; 32 E.R. 1115 at 11 16 per Lord Eldon, L.C. 64 Brown v. Brown (1978) 7 Alta L.R. 262 at 272. 65 (1969) 6 D.L.R. (3d) 88. 66 (1969) 3 D.L.R. (3d) 285. 67 (1977) 79 D.L.R. (3d) 122; aftinned (1978) 84 D.L.R. (3d) 416, 582 SYDNEY LAW REVIEW sever even though the negotiations break down. Such an inference, however, could not be drawn from the facts here. He did proffer the view, nevertheless, that within the third category d cases, "An unwmmunicated declaration by one party to the other or indeed a mere verbal notice by one party to another clearly cannot act as a severan~e".~~ Similarly, Browne, L.J. found it strictly unnecessary to discuss this head of the argument. In any case, he doubted whether there was sufficient evidence as to a course of dealing to raise the question. He also agreed, however, that "an uncommunicated declara- tion by one joint tenant cannot operate as a severan~e".~~ Lord Denning, M.R. took a different view. His Lordship held that there had been a course d dealing which "clearly evinced an intention by both parties that the property should henceforth be held in common and not jointly".82 With respect, it is a little dficult to draw such an intention from the meagre evidence before the Court, but putting that to one side, Lord Denning pointed out, as is clearly the case, that the third category of severance is applicable where both parties have entered upon such a course of dealing.88 He added, however, that it is also sufficient "if there is a course of dealing in which one party makes clear to the other that he desires their shares should no longer be held jointly but be held in common", provided that he makes his desire known to the other party.84 In other words, one joint tenant may by unilateral action (short d actual alienation) communicated to the other, intimate that he regards Ms inter& a severed, thereby cause a severance and effectively compel his m-owe. to hold, vis-a-vis him, as tenant in common. i As we have seen, one joint tenant can unilaterally sever his join tenancy by alienation of his share inter vivos, either voluntarily a involuntarily. But is Lord Denning correct in permitting the unilatera act of one joint tenant, short of alienation, to constitute such a course of dealing as, in the words of Page Wood, V.-C., "to intimate that tht interests d all were mutually treated as constituting a tenancy ir ~ o m o n " ? ~ ~ Doubtless, Page Wood, V.-C.'s formulation of thc methods of severance is not to be applied as though it were ar inviolable statutory formula, but, taking the words at face value woulc appear to require that all persons concerned join in the course o dealing; &hawise, how can the interests d all be mutually treated a held in common? 80 Id. 448. 81 Id. 444. 82 Id. 440. 83 Id. 439. 84 Zbid. (emphasis added). This part of Lord Denning's judgment was cit with apparent approval in Greenfield v. Greenfield (1979) 38 P. & C.R. 570 577-8. 85 Williams v. Hensmart, supra n. 2 at 557; 867. SEVERANCE OF JOINT TEnANCUES 583 In most of the cases where severance has been effected by' a course of dealing, all joint tenants have in fact part i~ipated.~~ Such cases are therefore of little assistance in determining whether the com- municated declaration of one joint tenant is sufficient, except so far as they contain statements of general principle. There are, however, a few cases which are directly in point. Perhaps the earliest is Partriche v. Powlets7 where a person entitled as joint tenant to a fund entered into a marriage settlement, the deed d settlement reciting that she should enjoy the fund to her separate use, and that, for want of issue of her body, it should go to the next of kin of her own family. The other joint tenant was not a party to the deed. Lord Hardwicke, L.C. held there was no severance, "for, first, here is no agreement for this purpose. . . . IT]he declaration of one d the parties that it should be severed, is not sufficient, unless it amounts to an actual agreement".88 Then, in In re Wilks; Child v. B ~ l m e r , ~ ~ an infant held a fund as joint tenant with two other infants. Immediately he turned twenty-one he applied to the Court for an order transferring ons-third of the fund to him absolutely. Because of pressure of court business his application was adjourned for four weeks, and in that period the applicant died. Stirling, J. held that there had been no severance, as the applicant had died before the order was made. The basis of his Lordship's reasoning was that until an order is mzde, an applicant is perfectly free to discontinue his suit, and until such order he has therefore done no act "such as to preclude him from claiming by survivorship any interest in the subject matter of the joint tenancy".90 Stirling, J. found support for his decision in the assumption that the third category of severance mentioned by Page Wood, V.-C. in Williams v. Hensman appeared to include "those in which there is no express agreement to sever, but such agreement may be inferred from the conduct and dealings of all the parties".91 No agreement could be inferred here, because the other two joint tenants were infants. He was able to rely also on a dictum of Lord Thurlow in Perkins v. BayntonS2 where it was said: "William Baynton . . . brought his bill for the moiety of this money. It is contended that severed the joint tenancy. I do not know that a demand will sever a joint tenancy." The next case in this line of authority is Nielson-Jones v. F e d ~ i e n . ~ ~ Walton, J. there found cm the evidence that no agreement s6 See, for example, Jackson v. Jackson (1804) 9 Ves. Jun. 591 at 604, 32 E.R. 732 at 737; Crooke v. De Vandes, supra n. 63 at 333 11 16; (cf. Leake y. Macdowall (1862) 32 Beav. 28; 55 E.R. 11); Wilson v. Bell (1843) 5 .r.Eq.Rep. 501 at 507; Williams v. Hensman supra n. 2 at 558-560; 367-868; Re Denny, supra n. 70 at 1037; Flannigan v. Wotherspoon, supra n. 62. 87 (1740) 2 Atk. 54; 26 E.R. 430. 88 Id. 55; 43 1. 89 [I8911 3 Ch. 59. 62. With respect, this reasoning seems to beg the question. 91 Id. 64. 92 (1784) 1 Bro. C.C. 118; 28 E.R. 1187. p3 Supra n, 68. 584 SYDNEY LAW REVIEW to sever had been reached by the joint tenants, but was prl assume for the purposes of argument that one joint tenant 1 an unequivocal declaration of his wish to sever the tena proceeded: The question then is, can such a declaration - a declaration - ever be effective to sever a beneficial joint It appears to me that in principle there is no conceivab for saying that it can. So far as I can see, such a mere declaration does not in any way shatter any one of the unities.04 In reaching that conclusion, Walton, J. followed In re Wii declined to follow the decision d Havers, J. in Hawkedey where it had been held that a declaration d intention to sevc party fell within the first method referred to by Page Wood, William v. H e n s m . Walton, J . took the vie+' (which wo with respeot, to be correct) that Havers, J. had failed to appre by the first method Page Wood, V.-C. meant actual aliena also pointed out that, so far as the report indicated, Haver not had cited to him any d the relevant authorities. 'U similarly declined to follow In re Draper's Conveyance, Plowman, J. had referred to the decision of Havers, J. and cluded: "So from that case I derive this; a declaration by number of joint tenants of his intention to sever opera ~everance".~~ Plowman, J. had held that the issue of a sumn an affidavit in support, in proceedings for determination of rights under the Married Women's Property Act 1882 (U.K. that property be sold and the proceeds distributed equally, was to effect a severance, evincing an intention on the part of the that she wished the joint tenancy to be no longer on foot. Plowman, J. had "Handy repeated" the conclusion of Have1 decision in In re Draper's Conveyance could have no greater than Hawkesley v. May, and Plowman, J.'s decision on the the issue of the summons was, so Walton, J. thought,loO cc In re Wilks. Walton, J . concluded that Hawkesley v. May : Draper's Conveyance "do not represent the law . . . Ibein; contrary to the existing we11 established law . . . and I do no to follow them".lO1 It is in this context that we may return to the judgment Denning, M.R. in Burgess v. Rawnsley. In stating that a "I 94 Id. 230. 95 118911.3 ch. 59. 96 [I9561 1 Q.B. 304 at 313. 97 Supran. 68 at 234. 9s [I9691 1 Ch. 486. 99 Id. 491. SEVERANCE OF JOINT TENANCIES 984 tenant is not sufficient to constitute a severance. This view is based on the conclusion that Re Wilks and Nielson-Jones v. Fedden were correctly decided, and that Hawkesley v. May and In re Draper's Conveyance are wrong.l13 (c) Severance by mutual wills Recent Canadian case law has pointed up a method of severance by a course of conduct which would, perhaps, come as a surprise to many lawyers. In Szabo v. Boros,'14 the British Columbia Court of Appeal held that although one joint tenant cannot defeat the right d survivorship by will, where all joint tenants agree to, and do, execute wills leaving the property to each other this evinces an intention to treat the joint tenancy as severed. In Szabo v. Boros, husband and wifd agreed to execute, and did execute, mutual wills leaving their jointly owned property to each other for life with remainder to their respective children from earlier marriages. Davey, C.J.B.C. had this to say: The question whether a mere inchoate common intention to treat property as held in common will suffice does not arise here, since the common intention was carried into effect by the concurrent execution of wills. This manner of severance provides the answer to all grounds d appeal. It is to be observed that no express act of severance is required as in the case of some other methods of severance. No contract or declaration of trust is necessary, merely an agreement or consensus implemented by a dealing with t h ~ property showing that the owners treat it as being held in common. Here that intention and dealing are disclosed by the evidence of the respondent that each of the tenants intended to dispose of his share by leaving it to the survivor for life, and in remainder to the designated beneficiary, and by the concurrent execution of wills to that effect. Such a scheme denies a right of survivorship, and a joint tenancy d which it is an essential ingredient.115 I doubt if any contract or declaration d trust was proved, but neither was needed, because it was the common intention and dealing with the property that governed. This decision was followed in Bryan v. Heuth,l16 where husband and wife joint tenants agreed to make mutual wills leaving their respective nterests in the property to each other and their respective children in :qua1 shares. On consulting a solicitor they were advised that it would 113 See Munroe v. Carlson (1975) 59 D.L.R. (3d) 763; Re Sorensen and iorensen (1977) 90 D.L.R. (3d) 26; Rodrigue v. Dufton (1976) 72 D.L.R. :3d) 16; Johnson v. Johnson (1980) 3 Sask. R. 75; see also Power v. Grace 19321 2 D.L.R. 793; Grant v. Grant [I9521 O.W.N. 641. Cf. Ginn v. lrmstrong (1969) 3 D.L.R. (3d) 285. 114 (1967) 64 D.L.R. (2d) 48. 115 Id. 49. 116 [I9801 3 W.W.R. 666. 588 SYDNEY LAW REVIEW be necessary to sever their joint tenancy by a conveyancing deed. Mutual wills and a deed of conveyance were prepared but only the wills were executed. It was held that there was a severance in two ways, viz., by mutual agreement, and by a course of conduct showing a clear intention to sever which was carried through by execution of the wills.ll7 It may be questioned whether it is necessary in all cases to prove the actual execution d the mutual wills. The mere fact that the joint teaants agree to make mutual wills may indicate an agreement that they m longex wish the right d survivorship to although no doubt that agreement is easia to demonstrate where 'the wills are made. It may also be questioned whether it is not relevant that the jointly ( 4 d property was the only substantial asset of the joint tenants (as appears to have been the situation in both of 'the Canadian oases referred to above) or merely one of many other assets. In the latter situation, it may be quite unrealistic to assume that the partias no longer wished the right d survivorship to operate in respat of the specific jointly owned pr-.ll9 There appears to be no Australian authority on the severance of joint tenancies by the execution of mutual wills, but it had been decided in England many years ago that such was the law,lZ0 and there is no r e a m to suspwt that Australian courts will come to a different conclusion. 117 See also Re Skippen [I9471 1 D.L.R. 858, where the point was conceded 118See In re Lansell. supra n. 56 at 134-5. l1D See the dissenting judgment of Laskin, J.A. in Re Gillespie (1968) 1 D.L.R. (3d) 317. 120 Re Wilford's Estate, supra n. 56; Re Hays, supra n. 56.