Re Draper’s Conveyance [1969] 1 Ch 486

Key point

  • A court summons for an order of sale and distribution of proceeds constitutes notice in writing under s36 LPA

Facts

  • The wife (C) issued summons for an order that the house she held as joint tenant in equity with her husband be sold, and proceeds distributed equally between her and then
  • The husband died before order was granted
  • C now claims that she is entitled in equity to the entire property as the sole surviving joint tenant

Issue

  • Was joint tenancy severed before C’s husband died?

Held (High Court)

  • The summons coupled with the affidavit that supported it effected the severance
  • C holds beneficial interest in any proceeds of sale on trust for herself and estate of the deceased as tenants in common in equal shares

Plowman J

  • The parties evinced an intention on the summons for the property to be sold and proceeds distributed 50-50, this is wholly inconsistent with the notion that beneficial joint tenancy is to continue
  • It does not matter that there is no power for the court under the Married Women’s property Act 1882 to sever a beneficial joint tenancy, since the severance is not effected by the order