How to Challenge a Will With Jointly Owned Property

When someone dies leaving a will that includes property they owned jointly with another person, questions often arise about whether that property can be challenged in a will dispute. Joint ownership of property can affect how it passes on death, and it may influence whether and how a will can be contested. This guide explains how jointly owned property is treated under English and Welsh law, when it forms part of a deceased estate, what legal avenues exist for challenging a will that deals with such property, and what rights interested parties have. Concepts such as survivorship, probate, tenancy in common and Inheritance (Provision for Family and Dependants) Act 1975 claims are explained in clear, practical terms.

Understanding Jointly Owned Property

In England and Wales, property co‑owned by two or more people is held either as:

• Joint tenants; or
• Tenants in common.

Joint Tenants and the Right of Survivorship

When property is owned as joint tenants, each owner owns an indivisible interest in the whole property. The defining feature of a joint tenancy is the right of survivorship: on the death of one owner, their interest automatically passes to the surviving owner(s) by operation of law. This transfer happens regardless of the terms of any will. A person who was a joint owner cannot leave their share of the property to someone else in a will unless the joint tenancy has been severed before death.

On the death of a joint tenant, a Grant of Probate is generally not required to transfer legal title in that property; submitting the death certificate and completing the necessary Land Registry forms is typically sufficient to update ownership records.

Tenants in Common and Distinct Shares

By contrast, if property is owned as tenants in common, each owner holds a distinct share. That share can be equal (e.g. 50/50) or unequal (e.g. 60/40) depending on contributions and agreement. In this situation, the deceased's share does not automatically pass to the surviving co‑owner(s); instead, it forms part of the deceased's estate and can be distributed according to their will, or under intestacy rules if there is no valid will.

Whether property is held as joint tenants or as tenants in common should be evident from the title register or a declaration of trust if one exists. If title is silent, it may be assumed to be joint tenants but legal advice may be needed to confirm beneficial shares.

When Jointly Owned Property Is Part of a Will

Joint Tenants

A person who owns property as a joint tenant cannot typically control the fate of that property by will because their interest is extinguished on death by the right of survivorship. Even if the will states a different intention, the automatic legal transfer to the survivor prevails.

For example, if spouses own their home as joint tenants and one spouse's will attempts to leave a share of that home to their children, that provision would generally be ineffective because at the first death the surviving spouse takes the property wholly by survivorship.

This automatic legal transfer may be an issue when a will challenge arises, because the question of whether the property was jointly held and whether survivorship applies is central to whether the property is actually part of the deceased's estate for contest purposes.

Tenants in Common

Where property is held as tenants in common, the deceased's share does form part of their estate and is capable of being passed under the terms of their will. In this scenario, the distribution of that share (e.g. to beneficiaries) is potentially subject to challenge if there are valid grounds.

Legal Grounds for Challenging a Will Involving Jointly Owned Property

Whether jointly owned property forms part of a will challenge depends on how the property is held.

Challenging Validity of the Will

If the deceased held the property as tenants in common, their share of that property passes under their will and may be challenged on standard legal grounds, such as:

• Lack of testamentary capacity: The person making the will lacked the mental capacity required by law at the time it was executed.
• Lack of knowledge and approval: The deceased did not know or understand the content of the will.
• Undue influence or coercion: The deceased was pressured by another person to make the will in particular terms.
• Improper execution: The will was not signed by the testator and witnessed in accordance with the formal requirements of the Wills Act 1837.
• Fraud or forgery: The will or signatures are fraudulent.

Any such challenge needs credible evidence. If the will is declared invalid, the estate will be distributed under an earlier valid will or under intestacy rules.

Challenges Under the Inheritance (Provision for Family and Dependants) Act 1975

Even if a will is valid, someone may feel that they have not been adequately provided for in relation to jointly owned property. Under the Inheritance (Provision for Family and Dependants) Act 1975, a close relative or dependant may apply to the court for reasonable financial provision from the deceased's estate. If property was held as tenants in common, the deceased's share is part of the estate and the applicant might argue the will fails to make reasonable provision, particularly where that share would otherwise pass directly to named beneficiaries.

However, if property was held as joint tenants, the deceased's share does not form part of the estate on the first death, and therefore typically cannot be the basis of a 1975 Act claim in respect of that share at that stage.

Practical Steps to Challenge a Will Involving Joint Property

Step 1: Establish Ownership Type

Obtain the Land Registry title to confirm whether the deceased owned the property as joint tenants or tenants in common. This is crucial because it can determine whether the property forms part of the estate at all. If the estate is wrongly assumed to include the property when it was held as joint tenants, a will challenge may fail on that basis alone.

Step 2: Determine Standing and Grounds

Ensure you have a vested interest in the estate or a recognised right (e.g. dependent, spouse, beneficiary under earlier will) to bring a claim. Identify your legal basis for challenge, whether on grounds of validity or under the 1975 Act.

Step 3: Consider Probate Registry Tools

Before probate is granted, an interested person may lodge a caveat at the Probate Registry to prevent the issuance of a Grant of Probate. A caveat can provide time to investigate and prepare a potential challenge. Once probate is granted, a claim can still be made, but time limits and evidential challenges can make this more difficult.

Step 4: Seek Evidence and Legal Advice

Gather relevant documents such as wills (current and earlier versions), medical records, witness statements, correspondence around the instruction of the will and any declaration of trust. Legal advice from solicitors experienced in wills and probate disputes is critical, as these cases can be legally complex and subject to strict time limits.

Step 5: Consider Alternative Dispute Resolution

Litigation can be costly and time consuming. In many cases parties agree to mediation or negotiation to resolve disputes before formal court hearings. Courts often encourage alternative dispute resolution where appropriate.

Time Limits

Claims under the 1975 Act generally must be commenced within six months of the date on which Grant of Probate (or Letters of Administration) is issued. There is no statutory time limit for certain types of validity challenges, but delay can weaken evidence and prospects of success. Prompt action is therefore advisable.

Risks and Considerations

Challenging a will involving jointly owned property presents specific risks:

• Survivorship may render the estate claim moot: If the deceased's interest in the property passed automatically to the co‑owner, that interest may not be contestable as part of the estate.
• Costs and adverse costs orders: Unsuccessful challenges may result in orders to pay own and other parties' legal costs.
• Complexity of evidence: Validity challenges on grounds such as undue influence or capacity require strong evidential support.
• Family dynamics: Disputes over jointly owned property can exacerbate family conflict.

Careful assessment of legal standing, property title and the strength of available evidence is essential before commencing any formal claim.

Common Questions from our Readers

Can jointly owned property be included in a will challenge?
Only if the property was held as tenants in common such that the deceased's share forms part of their estate. Joint tenancy property typically passes outside the estate by right of survivorship.

What is a caveat and why is it useful?
A caveat is a notice filed with the Probate Registry to halt the issuance of a Grant of Probate. It preserves a potential claimant's position while evidence is collected.

Can a joint tenant sever the joint tenancy to affect a will?
Yes. A joint tenant may sever the joint tenancy, creating a tenancy in common where each owner holds a distinct share. This allows each to leave their share by will. Severance can be done unilaterally by serving notice.

Key Takeaways

Challenging a will that involves jointly owned property in England and Wales requires an understanding of how that property is held. If property was owned as joint tenants, the right of survivorship typically overrides the will as far as the property itself is concerned. If property was owned as tenants in common, the deceased's share forms part of the estate and may be subject to challenge on recognised legal grounds or claims for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act 1975. Establishing ownership type, ensuring legal standing, timely action and credible evidence are key components of any effective challenge.