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

Telemon Lawyers > FAQs > 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 is that unless there are words of “severance” where there is gift to multiple persons, the beneficiaries take as joint tenants: Matter of Lysaght (1987) 48 SASR 457.

However in NSW (and some other jurisdictions) the common law position has been reversed such that beneficiaries take as tenants in common unless the will express provides that the beneficiaries are to take as joint tenants: Conveyancing Act 1919 (NSW), s 26:

  1. In the construction of any instrument coming into operation after the commencement of this Act a disposition of the beneficial interest in any property whether with or without the legal estate to or for two or more persons together beneficially shall be deemed to be made to or for them as tenants in common, and not as joint tenants.
  2. This section does not apply to persons who by the terms or by the tenor of the instrument are executors, administrators, trustees, or mortgagees, nor in any case where the instrument expressly provides that persons are to take as joint tenants or tenant by entireties.

Section 6 of the Conveyancing Act provides that “instrument includes deed, will, and Act of Parliament”.