Property owned by two or more persons can be owned as either joint tenants, or tenants in common. Joint tenants own 100 per cent of the property together, whereas tenants in common each own a specific share in the property (often 50/50). 

The right of survivorship exists when a property is owned by two or more people as joint tenants. If one owner dies, the property automatically passes to the remaining owner(s). The remaining owner(s) then continue to own 100 per cent of the property. This is common in marriage, where the property automatically passes wholly to the deceased’s spouse. 

This survivorship rule therefore raises certain issues for someone who is contemplating a claim under the Inheritance (Provision for Family and Dependants) Act 1975. Under this Act, claims are made against the deceased’s estate. But where the property was held as joint tenants, it will have passed to the surviving owner(s) on death, and will not form part of the deceased’s estate. On the face of it, then, there can be no claim in respect of a property held on joint tenancy.

However, there is a clawback available for joint tenancies. Section 9 of the 1975 Act allows property owned as a joint tenancy, before death, to be taken into account when determining the net estate of the deceased. The person claiming must apply to the court for an order. If the order is granted, the court will then include the deceased’s share in the property as part of the net estate of the deceased “to such extent as appears to the court to be just in all the circumstances of the case”. 

If you would like information about disputing a will, probate disputes or inheritance disputes, please call 01902 424927 and ask to speak to one of our specialist contentious probate lawyers. Alternatively, please e-mail us at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues you wish to discuss with us, along with your contact details.

We have a dedicated practice team of contentious probate solicitors, covering all areas of the UK (with offices near Birmingham and in Wolverhampton) who are experienced in dealing with all types of contentious probate matters, including challenging a will and estate disputes.

We also have a team of probate lawyers who can assist if you wish to review you current will or to make a will for the first time.