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06 JAN 2012

JOINT TENANCY: Davis v Smith [2011] EWCA Civ 1603

(Court of Appeal; Lord Neuberger, Maurice Kay, Sullivan LJJ; 23 November 2011)

Appeal against a decision that a joint tenancy of a former matrimonial property had been severed in equity. S had been married to the mother (M) of the respondents (D) and they had jointly purchased a property that M had previously occupied as a council tenant. The marriage broke down and S moved out of the property and issued divorce proceedings against M. M and S's joint assets consisted of the property, some minimal cash and an endowment policy. It was agreed between M and S that the property should be sold. Correspondence between the parties' solicitors indicated that S would get all the proceeds from the policy and that M would get the ‘lion's share' of the sale of the property to make up for S receiving the policy proceeds. S's solicitors wrote to M to confirm that a contract for the sale of the property had been issued to the solicitors of a prospective buyer.

A couple of days later M executed a will appointing D as executors of her estate. A few days later M died unexpectedly on a day that she had intended to visit her solicitors to serve a notice of severance of the joint tenancy pursuant to the Law of Property Act 1925 s 36(2). The judge held that the joint tenancy had been severed by mutual agreement between M and S or by the course of dealing between them which led to the same result. S contended that the judge had erred in finding that the joint tenancy had been severed.

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