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(Court of Appeal; Arden, Richards and Rimer LJJ; 19 March 2009)
The husband and his sister purchased the property as tenants in common; the declaration of trust divided the interest 75% to the husband and 25% to his sister. The deed described the husband and sister as 'tenants in common', but in a subsequent clause provided that on the death of either before the sale of the property the survivor was to become entitled to the proceeds of the property absolutely. The husband lived in the property alone until he married, after which the property became the matrimonial home. In his will the husband named the wife as his sole beneficiary. The husband died and the sister claimed the property absolutely. The wife argued that the clause concerning survivorship was invalid, as repugnant to other terms in the deed. The judge awarded the property to the sister and the wife appealed.
The parties had intended the survivorship clause to be effective; it was not a disposition intended to take effect only upon the husband's death, it took effect immediately, and irrevocably gave the sister a contingent remainder in the husband's interest in the property so long as the property remained unsold. The wife's appeal was dismissed.
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