The law is an ass, a frustrated Mr Bumble observed in Charles Dickens’ Oliver Twist. That may, or may not be the case, however we should remember it is a stubborn old mule, before we create mirror wills without careful thought.
That’s because we could innocently cause conflict with another legal principle, and leave a mess behind for our executor to sort out. In the case we review today, the conflict was between a joint tenancy and a back-to-back will, causing a family to go to court against itself.
What are Mirror Wills and Joint Tenancies?
Let’s begin by refreshing our memory as to what these terms mean, so we are on the same page before we begin.
Identical Wills Between Spouses
English law does not allow for joint wills, even though spouses may believe ‘what is mine is yours and what is yours is mine’. The closest they can get to this is to leave nearly identical wills, in which each leaves their entire estate to each other.
These documents should state what happens to their assets if they die simultaneously, or within a short, defined period of each other. If this is not the case, then the survivor becomes the sole owner but should make a new will.
Joint Tenancies Between Two People
However, English law does allow for joint tenancies, where two people each own the whole share of a property (as opposed to a fractional part). When one dies, the law says their right automatically passes to the survivor.
Joint Tenants Versus Tenants in Common
The UK Gazette confirms property can be owned jointly in England in two ways:
- As joint tenants whereby both own 100% of the property. In this case if one dies the other continues to own 100%.
- As tenants in common whereby their shares depend on their contribution. When one dies, that share becomes part of their estate.
Friends, siblings and business partners generally prefer joint tenancies, which they can agree to end by mutual agreement. Whereas tenants in common can sell their shares summarily at any time.
Conflict Between These Principles in Dunbabin v Dunbabin
The Dunbabins were an elderly couple married for over 60 years, and owners of a property in Milton Keynes. Their children disputed their joint tenancy in 2022 after one died, and asked the England and Wales High Court (Chancery Division) to rule on the matter.
The Court found the unregistered conveyance documents did not state whether their tenancy was joint or in common. However, the legal presumption favoured joint tenancy. The Dunbabins made mirror wills in 2008 which included the following:
- The property would be in trust for the survivor to occupy after the first death.
- After the second death it would pass to their four sons in equal shares.
Their intention as to protect their estate as far as possible from care fees. These might have accrued if the survivor went to a care home.
However, Mr Dunbabin made a new will in 2016 after Mrs Dunbabin pre deceased him. This left 75% of the property to one of the sons, with the remainder in equal shares to the other three children. After he died too in 2020, the value of the property was £500,000.
The Core Question Before the England and Wales High Court
The other three children challenged the bequest leaving the court to consider the following:
- If the Court assumed joint tenancy endured after the death of his wife, then Mr Dunbabin would have owned the entire property with the right to dispose of it as he wished.
- However, if the joint tenancy had been severed, then Mr Dunbabin would have owned only half the property. In that case, half the value would have been shared equally between the sons.
- That other half would have been divided in terms of Mr Dunbabin’s will, meaning the favoured son would receive £250,000 in total as opposed to £375,000, and the other three £83.333 compared to £41,666 according to The Gazette
The England and Wales High Court’s Decision
The Court considered the wording of the mirror wills carefully, before turning their attention to an explanatory letter the Dunbabins had written at the time. The latter quite clearly stated half the house should go equally to the children after the first death.
Therefore, it seemed evident their intention was to sever the joint tenancy at that time. But in addition to this, Mr Dunbabin’s new will mentioned ‘my share of the property’ clearly. And finally, his solicitor said the intent of the explanatory letter was to sever the joint tenancy.
The Judge declared, “The evidence satisfies me that there was a course of conduct (in particular, the making of the mirror wills) which showed that one party (indeed, each party) made clear to the other that that one desired that their property should no longer be held jointly but be held in common”. Therefore the three brothers won their case, but the family was divided on the matter.
