Re Draper's Conveyance [1969] 1 Ch 486

Facts

  • A married couple owned property as joint tenants.
  • After a provisional divorce order, the wife applied to the court under the Married Women's Property Act 1882 seeking sale of the property and division of proceeds.
  • Before any final order was issued, the husband died.
  • The court was required to determine whether the wife’s application constituted sufficient action to sever the joint tenancy and entitle her to half the property, or whether survivorship applied, transferring full ownership to the husband’s estate.

Issues

  1. Whether commencing formal court proceedings to divide and sell property demonstrates clear intent to sever a joint tenancy.
  2. Whether survivorship applies when one joint tenant dies before the court issues a final order, or if earlier court action by a co-owner is enough to sever the joint tenancy.

Decision

  • The Court of Appeal held that the wife's court application to sell and divide the property demonstrated clear and fixed intention to end the joint tenancy.
  • The formal step of commencing legal proceedings was sufficient to sever the joint tenancy, even though no final court order had been made before the husband died.
  • The court held that actions reflecting a definite intent to treat property as separate shares are incompatible with the right of survivorship under joint tenancy.

Legal Principles

  • Severance of a joint tenancy can occur not only by written notice or mutual agreement but also through actions or applications showing a clear and fixed intention to end the joint arrangement.
  • Initiating formal court proceedings to divide or sell joint property is strong evidence of intent to sever.
  • The requirement is not the final court order, but the unequivocal act indicating a decision not to maintain joint tenancy.
  • Clear intent and formal actions can override the operation of survivorship in joint tenancy arrangements.

Conclusion

Re Draper's Conveyance established that taking formal legal steps to divide or sell jointly owned property severs a joint tenancy, even if no final court order is in place before a co-owner’s death. The case highlights that demonstrable intent and definitive action, rather than mere discussions or final judgments, are central to joint tenancy severance.

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