My Dad and wife's home in law

Our lawyer, Fiona McNulty, advises on the legal issues relating to joint tenancy
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Question: My father and my wife have a joint tenancy on his house. In his will, my father has stated that 50 per cent of his property is to go to my sister.

I have heard that regardless of the will the house would go to the surviving person because of the joint tenancy. Is this correct?

Answer: Even though both your father and wife may hold the legal estate in the property as joint tenants on trust for themselves, they could have held what is known as the equitable or beneficial interest, which deals with the division of the proceeds of sale, as either joint tenants or as tenants in common.

Beneficial joint tenants each own all of the property and not a distinctive share, so when one of the joint tenants dies that person's share in the property automatically passes to the survivor. The share of the deceased joint tenant cannot be left by will to anyone because of the automatic right of survivorship.

If your father and wife hold in this way, the gift to your sister in the will cannot be effective. However, the joint tenancy may be severed into a tenancy in common, so that the shares are divided and your father can then leave his share by his will. He should consult his solicitor about severing the joint tenancy if he wants to ensure that he leaves his share to your sister.

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If you have a question for Fiona McNulty, email legalsolutions@standard.co.uk, or write to: Legal Solutions, Homes & Property, Evening Standard, 2 Derry Street, London W8 5EE. We regret that questions cannot be answered individually but we will try to feature them here. Fiona is a partner in the property team at Thring Townsend Lee & Pembertons Solicitors (ttuk.com).

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