The reference arose from concerns about certainty in case law and practice in relation to the rules governing joint tenancies and tenancies in common. Currently, the law in Western Australia requires extensive, technical formalities (in the form of construction of an ‘express trust’) to be followed in order to enact severance of a joint tenancy. Recent cases where severance intentions have failed because of failure to adhere to trust requirements, demonstrate the need for reform in this area. The current ambit of the law in relation to severance further enables individuals to avoid the legislative intention of the Inheritance (Family and Dependants Provision) Act 1972 (WA). Through a lifetime transaction the testator can dispose of property and defeat the ability of the court to provide for any dependants.
In 1994 the Commission was given a reference ‘to review the law relating to joint tenancies and tenancies in common of real and personal property in law and equity in respect to:
- the rules of construction governing the creation of joint tenancies and tenancies in common;
- the severance of joint tenancy by notice; and
- whether the Inheritance (Family and Dependants Provision) Act 1972 should be amended to empower the court to include a deceased person’s interest in a joint tenancy in the property from which provision for an applicant may be made’.
Outcomes
There has been no legislative action taken to implement the Commission’s recommendations. No practical reference has been made to the report by the courts, Parliament, or relevant government departments. However, the current practice of the Department of Land Administration follows Recommendation 1.
