In a story in Lianhe Zaobao, our Private Wealth and Trust Advisory consultant Prof. Tang Hang Wu shared two stories about joint property ownership to demonstrate that it is best to have one’s affairs in order early before any marriage crisis occurs. The article, in Mandarin Chinese, is based on a write up provided by Prof. Tang, which we reproduce here:
In the past before the imposition of Additional Buyer’s Stamp Duty, married couples usually acquire property on joint tenancies. Joint tenancies are preferred because of the right of survivorship i.e. the surviving joint tenant will own the property once the other joint tenant dies. It is important to note that until a joint tenancy is severed and converted into a tenancy-in-common, a joint tenant may not bequeath his or her share by way of a Will to a third party. If the relationship of the couple becomes estranged, the right of survivorship may become undesirable.
For example, many years ago, I received an inquiry by a lady who said that she had Stage 4 breast cancer. Her difficulty was that she owned eight properties with her husband on a joint tenancy. The lady knew that her husband was in a relationship with another lady and she was worried when she passed on the properties would go to her husband and his lady friend. She consulted me as to what could be done. Legally, I advised her that the best way to resolve this problem was to sever the joint tenancy formally and make a will giving her half share of the properties to her children. However, this process involved serving her husband with notice of the instrument of severance. The lady agonised over this decision because she felt that she was not prepared to make the relationship with her husband even worse by serving the instrument of severance. In the end, she decided not to do anything.
Another inquiry I received was from a lawyer who told me about this fact situation. Again, it was estranged couple, with a joint tenanted property. I was told the husband was in a relationship with a third party. The wife was very ill in the hospital bed. The wife instructed her lawyer to prepare the formal instrument of severance for her to sign. Unfortunately, before the wife could sign the instrument of severance, she fell into a coma. The lawyer asked me what could be done at this stage. I advised the lawyer that it was possible to make an urgent application to court pursuant to a Mental Capacity Act for the wife and ask the court to appoint a representative for the wife called the deputy. The application should also ask for the deputy to be given the power to sever the joint tenancy. However, I cautioned the lawyer that this was a difficult order to get and would involve substantial legal fees. The lawyer thanked me for my advice and consulted the family. No legal action was eventually pursued and I heard that the poor lady eventually passed away.
All these stories demonstrate that it is best to have one’s affairs in order early before any crisis occurs. Of course, this is easier said than done because marital affairs are often tricky and complex and that women do face unique pressures due to social and cultural pressures which may prevent them from severing a joint tenancy.