I want to leave a bequest to a husband and wife together, is the gift as joint tenants or tenants in common?

The common law position, as expressed in Re Lysaght (1987) 48 SASR 457, is that unless words of “severance” are present the relevant persons will take as joint tenants. Words of severance include the word “equally”. To give an example, if you state that the husband and wife are to share the gift “equally”, according to the common law they will take the gift as  tenants in common.

However, in NSW (and some other jurisdictions) the common law position has been reversed. Pursuant to s 26 of the Conveyancing Act 1919 (NSW), there is a presumption that parties will take as tenants in common. It states at paragraph (1) that a disposition of the beneficial interest in any property with or without the legal estate to at least two people will be deemed to made for them as tenants in common and not as joint tenants.