hiriskpaul wrote:Curiously, this HMRC page
https://www.gov.uk/hmrc-internal-manual ... /ihtm12061, states
Whatever the type of Will, property held jointly (IHTM15001) and passing by survivorship (IHTM15081) cannot be subject to any Will but passes automatically to the surviving owner(s).
So presumably their jointly held property and bank accounts are not restricted by the Will. If so, can a Will be written to cover these assets? Or another joint tenants relationship entered into for these assets?
You cannot dispose of jointly owned property by Will, as the doctrine of survivorship means that the property automatically vests in the survivor, irrespective of what the Will says.
However, there's a lot of confusion about what joint ownership actually means. Legal title is not the same as what lawyers call `beneficial' ownership - the right to enjoy the subject matter.
The most obvious example is where a house is owned by two people as tenants-in-common. On death the
legal title passes to the survivor by the law of survivorship. But the
beneficial title passes according to the terms of the tenancy-in-common. So if they owned it on a 70:30 basis and the deceased owned the 70% that share passes to whoever inherits his estate, and
not to the surviving owner.
This can cause massive confusion when it comes to bank accounts. I'm dealing with a case at present where the deceased left about £130k in a bank account that was in joint names with her son. He's saying that the cash has passed to him by survivorship, and that it therefore belongs to him. He's quite adamant that it does not form part of the estate, and he's saying he must be right as the bank have transferred the account into his sole name.
But it's not as straightforward as it seems. I've discovered that the deceased only added him to the account a couple of years ago, and so far as I can ascertain he has contributed nothing at all into the account. I suspect that he was added merely to facilitate managing the account, as the deceased was more more or less bed bound for the last couple of years of her life. So far as I'm aware there's no evidence that she meant him to inherit the cash in the account.
Consequently, I intend to argue that the cash does form part of the estate, and that although he has legal title to it he holds it as trustee for the estate.
It's quite worrying that banks, who are supposedly so keen to protect their customers, allow this sort of thing to happen without, it seems, ever considering the consequences. In practical terms, as the account is now in his sole name there's nothing to stop him withdrawing the cash and vanishing. Would / should the bank be liable in that situation? Answers on a postcard!