Clumsy severance notice causes dispute over family farm

The High Court in the case of Lee & Anor v Lee & Anor [2018] EWHC 149 has recently given judgment in a complex estate dispute among the Lee family in Looe, Cornwall. The dispute arose after the father, William Lee, died and a series of mistakes were unearthed meaning the farm land did not pass as intended by his last Will.

Background

The father and mother of the Lee family, William and Rosemary, lived at Little Hendra Farm in Looe, Cornwall. They had purchased Little Hendra Farm in October 2002 as beneficial joint tenants. When a couple own a property as beneficial joint tenants and one of them dies, the surviving spouse/partner becomes the sole legal owner of the property. Regardless of the rules of intestacy (the rules which apply when a person dies without leaving a valid Will) or any contrary provison contained in a Will, the property passes by survivorship to the other joint tenant. At the time of William’s death, Little Hendra Farm consisted of three different registered titles; the first comprised a number of fields, including one known as “Village Field”, the second was the farm bungalow and other fields, including two known as “Church Field” and “Borehole Field” and the third title comprised of more fields.

The Notice of Severance

William and Rosemary’s intention was essentially that whoever survived the other, in this case Rosemary, would take the farm bungalow and the three named fields (Village Field, Church Field and Borehold Field) absolutely and retain a half share in the remainder of the farm, with the other half passing to the couple’s son, Ben. When the surviving spouse eventually passed away the entire farm would go to Ben. This was stipulated in both William’s and Rosemary’s Wills.

In order to achieve this, it was necessary for William and Rosemary to sever their joint tenancy of the registered titles. Once severed they would each own their individual shares of the farm as beneficial tenants in common and would be free to leave that share to whoever they wish in their Will (or if there was no Will it would pass according to the rules of intestacy).

A notice of severance was prepared by William and Rosemary’s solicitors but it only referred to the first registered title which meant that the remaining parts of the farm remained unsevered. When William later died, therefore, Ben received only William’s half share of the first registered title (excluding Village Field). The second and third titles passed to Rosemary by survivorship.

The decision

The High Court was asked to rectify the Severance Notice and, in making its decision, applied the four necessary conditions (which have been established in previous case law):

1. There must be clear evidence of the true intention;

2. There must be a flaw in the written document such that it does not give effect to the parties’ intention, as opposed to the parties being mistaken as to the consequences of what they have agreed/intended;

3. The specific intention of the parties must be shown; and

4. There must be an issue capable of being contested between the parties.

The High Court found that the four conditions had been satisfied in this case and awarded the rectification of the notice.

Commentary

This case demonstrates the importance of meticulous drafting and the need to consider carefully the beneficial ownership position when preparing a Will to ensure it gives effect to the testator’s wishes. Although the equitable remedy of rectification may be available, as we have seen in the above case, it is always best to avoid litigation which tends to be costly and protracted.

In addition, a practical step that you can take to help evidence your wishes, is to make sure your intentions of how you would like your property to pass are documented clearly. This is often done in a Letter of Wishes to accompany a Will. In the above case, William and Rosemary had set out their intentions of how they wanted the land to pass in the form of a letter to their solicitors and, together with their Wills, the Court found sufficient evidence to award the rectification of the notice.

At Leathes Prior our Wills, Estates & Powers of Attorney Team can advise you on any of the matters covered in this article, including the preparation of Wills, advising on jointly owned property and severing joint tenancies. If a dispute has already arisen then our Wills & Probate Disputes Team can provide expert assistance.