Williams v Hensman (1861) 1 J & H 546
Williams v Hensman gives the classic classification of the ways in which an equitable joint tenancy may be severed. Its three methods remain the starting point for analysing whether beneficial co-owners have become tenants in common.
Facts
A will directed money to be invested, with income paid during a life interest and the capital passing to eight children afterwards. The beneficiaries later agreed to invest the fund on mortgage. With the consent of the five adult children, the trustee advanced part of the fund for the benefit of one child. Those adults covenanted not to require the trustee to make good any resulting deficiency and agreed to indemnify him. The court had to decide how these dealings affected the beneficiaries' joint interests, including whether the acts of some beneficiaries had separated their shares from those of the others. The dispute required Page Wood V-C to explain the recognised mechanisms by which a joint tenancy can be severed.
Legal Issue
By what acts, agreements or dealings can an equitable joint tenancy be severed so that a co-owner's beneficial interest is thereafter held as a tenancy in common?
Held
The Court of Chancery identified three methods of severance. First, one joint tenant may act on his own share in a way that is effective to separate it, without merely declaring an uncommunicated intention. Secondly, the joint tenants may sever by mutual agreement. Thirdly, a course of dealing may show that all concerned treated their interests as tenancies in common, even without an express agreement. On the facts, the arrangements made by the five adult beneficiaries concerning the advance and indemnity were sufficient to sever their interests from those of the other beneficiaries. The court's classification became the enduring common-law framework, later supplemented by statutory written notice under section 36(2) of the Law of Property Act 1925.
⭐ Legal Principle
An equitable joint tenancy may be severed by an act operating on a joint tenant's own share, by mutual agreement, or by a mutual course of dealing showing that the interests were treated as separate. Modern law also permits written notice under section 36(2) of the Law of Property Act 1925.
Significance
The threefold classification remains central because severance determines survivorship: a severed share passes under the co-owner's estate rather than automatically to the survivor. Later cases refine each route. Harris v Goddard distinguishes an immediate notice from a request for a future court order, Kinch v Bullard addresses service of written notice, and Burgess v Rawnsley considers mutual agreement. Legal title to co-owned land remains joint, so severance affects the equitable ownership only. Students should identify the alleged method, its timing and whether any communication or mutuality required by that method has been established.
Common exam questions about this case
What are the three methods of severance identified in Williams v Hensman?
They are an effective act by a joint tenant operating on his or her own share, a mutual agreement between the joint tenants, and a mutual course of dealing showing that all concerned treated their interests as tenancies in common. The categories concern equitable ownership. Section 36(2) of the Law of Property Act 1925 now supplies an important statutory route through written notice.
Is a private intention to sever a joint tenancy sufficient?
No. A merely internal or uncommunicated wish does not alter the beneficial ownership. The joint tenant must use a legally effective method, such as dealing with the share, reaching a mutual agreement, participating in a relevant course of dealing or serving valid written notice under section 36(2). The precise formal and communication requirements depend on the route relied upon.
What practical consequence follows when a beneficial joint tenancy is severed?
The right of survivorship no longer applies to the severed beneficial share. If that co-owner dies, the share passes under a will or the intestacy rules rather than accruing automatically to the other joint tenant. Severance does not divide the legal title, which co-owners continue to hold jointly as trustees. It changes the nature of their beneficial interests to shares held as tenants in common.