Understanding Wills and Joint Tenancies: What You Need to Know
No one likes to think about end-of-life matters. But, when preparing a will, it’s essential to understand how property ownership works, especially when it comes to joint tenancy and wills. This blog post by New South Lawyers’ team of experienced Wills & Estate Planning Lawyers explain what joint tenancies are. And, why they matter when making a will.
What is a Joint Tenancy?
A joint tenancy is a way of owning property where two or more people share ownership equally. A key feature of joint tenancy is the "right of survivorship," which means that when one owner dies, the surviving owner automatically gains full ownership of the property. This can affect how your assets are distributed after you pass away.
Why Does It Matter for Your Will?
If you own property as a joint tenant, your will may not control what happens to that property after your death. This is because the surviving owner automatically takes over ownership, which can make your wishes outlined in the will ineffective.
When a Wills & Estate Planning Lawyer prepares your will, they need to check how your property is owned. If it's under a joint tenancy, the lawyer should discuss the implications and, if you choose, help sever that joint tenancy before your death. Severing a joint tenancy means changing the ownership to a "tenancy in common," which allows your share of the property to be included in your will.
The Importance of Proper Advice
Failing to address joint tenancy issues can lead to claims of professional negligence against the solicitor if the will doesn’t fulfil your intentions. One case which highlighted this is Badenach v Calvert [2016] HCA 18. This case emphasised that solicitors should go beyond just drafting wills. They need to consider whether severing a joint tenancy is necessary to fulfil your intentions regarding property distribution.
In Vagg v McPhee [2013] NSWCA 29, the Court of Appeal upheld that the solicitor was not negligent in failing to sever a joint tenancy under circumstances where the testator's intentions were not clearly to provide for the joint property to be distributed differently. This case illustrates the importance of understanding the specific intentions of the testator when preparing a will.
Steps to Take When Preparing a Will
Here are some essential steps you should consider when working with your lawyers on your will. Especially if real property is involved.
Conduct a Title Search: This helps determine if your property is owned solely by you or as part of a joint tenancy.
Discuss Survivorship Rights: Your solicitor should explain how joint ownership affects your estate and whether you want to change that arrangement.
Consider Severing Joint Tenancies: If it aligns with your wishes, your solicitor can assist you in severing joint tenancies to ensure your property can be distributed according to your will.
Independent Advice for Joint Owners: If you own property jointly, your solicitor might recommend that both parties seek independent legal advice to navigate estate planning effectively.
Keep Records: Your solicitor should maintain thorough records of all discussions, instructions, and actions taken to ensure your wishes are documented.
Ultimately, understanding how joint tenancies affect your will is crucial for ensuring your assets are distributed according to your wishes. A good solicitor will help you navigate these complexities and ensure that your will is legally sound. If you're considering making or updating your will, make sure to discuss these points with your solicitor to protect your intentions and your beneficiaries.
If you have questions about joint tenancies or will preparation, don’t hesitate to reach out to our office for guidance. We’re here to help you navigate these important decisions.
Contact New South Lawyers today to secure your representation and approach your case with confidence.
