3 will v wills privy council george and elma g

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3. Will v Wills (Privy Council) George and Elma. G remarried in 1986, got rental income from the property. He died in 1992, so F argued she was the sole owner of BOTH properties (by way of doctrine of “sole survivorship” as a JT). G had adversely possessed E, even though E had never intended to lose her interest. 13
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14 We’re not sure how she lost her interest, but she, on the facts, left/abandoned the properties (ie, left nothing in the house, was treated as a guest when visiting). WAYS OF SEVERING A JOINT TENANCY (IE, CONVERTING TO TIC) 1. Williams v Hensman per Page Wood VC: there are 3 ways in which a joint tenancy may be severed: An act by a joint tenant operating on his or her share (ie unilateral) Mutual agreement A course of dealing sufficient to intimate the interests of all were mutually treated as constituting a tenancy in common UNILATERAL SEVERANCE – WAYS THAT A JOINT TENANT MAY SEVER BY ‘OPERATING ON HIS/HER SHARE’ 1. Severed at law - Transferring his/her share to another person by sale or gift. That is, you act in such a way as to indicate that you have a distinct share in the property, which is counter to what JT’s allow. 2. Severed at equity - Making an enforceable contract of sale, or a gift * which is effective in equity 3. Severed at law - Transferring to him/herself as tenant in common under s 72(3) PLA – (severs only on registration). Affects unity of title AND time 4. Severed at equity - Making a written declaration that the JT henceforth holds his/her share on trust for a named beneficiary. Still at JT at law though. 5. Requires production of certificate of title UNILATERAL SEVERANCE BY NOTICE? 1. A joint tenant cannot presently sever the joint tenancy by giving a notice to the other joint tenant(s). 2. VLRC recommends that it should be possible to do so by registering a notice of severance, without production of certificate of title. 3. Should this recommendation be enacted? Basically, the situation arises where you want to keep your interest, but don’t have title, so point 3 above CANNOT occur. Thus, VLRC suggests you should be able to register a notice of severance without production of certificate of title, which would be useful in situations of domestic violence, as hubby has title and unlikely to give it up. TASMANIA has enacted this!!! UNILATERAL SEVERANCE BY ENCUMBERANCES 1. Effect of: Mortgage – under GL, bank gets land, so this severs title, as time and title are affected. Under TS, this does NOT occur. See Lyons v Lyons Lease – suspends a JT!!! See Frieze Easement – no effect on the 4 unities, so NO SEVERANCE Profit a prendre – no, for the same reason above. EFFECT OF A JT MORTGAGING HIS/HER SHARE: LYONS V LYONS 1. Mr and Mrs L were jointly reg’d as proprietors of a property 2. Mr L mortgaged his share 3. Did this sever the joint tenancy? NO!!!
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