In 1995, Peter Smeaton engaged a solicitor, Joseph Pattison, to prepare a new will leaving his share of investment properties held in joint tenancy with his wife to his 4 children. The solicitor advised Mr Smeaton to execute transfers of his interest to sever the joint tenancies but did not advise him to notify his wife, which was legally required. Mr Smeaton died in 2000 without properly severing the joint tenancies. His wife became the sole owner by survivorship. The children sued the solicitor for negligence in failing to properly advise on severing the joint tenancy. The key issue was whether Mr Smeaton would have notified his wife if properly advised, to show the negligence caused loss. Based on evidence of Mr Smeaton’s intentions and relationships, the judge found he was likely to have notified his wife to give effect to leaving the properties to his children. The solicitor was therefore liable in negligence and damages were awarded to the children for the value of Mr Smeaton’s share of the properties.
Section 59 of the Land Title Act 1994 (Qld) allows a joint tenant to unilaterally sever a joint tenancy by registering a transfer after notifying the other joint tenants. Prior to 1994 in Queensland, there were limited ways for a joint tenant to sever a joint tenancy to allow their interest to pass by will. Since 1994 a single joint tenant may decide by themselves to sever a joint tenancy by –
– signing a form 1 transfer of their interest in the property from joint tenancy to tenancy in common;
– giving a copy of the transfer to all other joint tenants; and
– lodging the transfer and evidence it was served on the other tenants to Titles Queensland (land registry).
Once that transfer is registered, the joint tenancy is severed, and the joint tenant becomes a tenant in common. Notably, if a joint tenant does all the steps but dies before registration, the property passes to the surviving joint tenant/s by survivorship.