IHTM15044 | The extent of the share (England, Wales and Northern Ireland): land

Where the asset concerned is land, an express written trust is conclusive evidence of the beneficial interests (IHTM15011) subject to the exceptions listed below. The common form of conveyance to two or more persons as beneficial joint tenants (IHTM15082) is an example of a conclusive express trust. The exceptions are:

• fraud or mistake

• modification by a subsequent agreement (IHTM15041), and

• where the interests of spouses are affected by the Matrimonial Proceedings and Property Act 1970/S37 or those of civil partners by the Civil Partnership Act 2004/S65. In view of the IHTA84/S18 exemption for transfers between spouses (IHTM11031) this exception is of limited interest

If the document of title or a copy of the land registry certificate does not establish the beneficial interests in the land you need to find out what was intended when the joint ownership began (IHTM15041). You need to obtain evidence to show the intentions of the joint owners. Evidence can be:

• other documents from the time when the ownership began,

• later documents which throw light on the earlier intentions,

• statements from the surviving owners,

• statements from other people who knew what happened (but you must consider the issue of confidentiality very carefully when obtaining this sort of evidence).

• evidence from the conduct of the joint owners at the time the ownership began.

Establishing the intentions of the beneficial owners where there is no document can be a complex matter. So you should consider referring the matter to your Manager at an early stage if you wish to challenge the beneficial share included in an IHT400 (IHTM10021).

If the joint owners (IHTM11032) are a married couple or civil partners you should remember that the ‘related property’ (IHTM09731) provisions (IHTA84/S161) will apply.

If land held in beneficial joint tenancy was purchased with the aid of a mortgage, the beneficial interests

• arise when the joint tenancy is created, and

• subsist in the land burdened by the mortgage

For example, Jasveer and Roopindar buy a house together as joint tenants with the aid of a mortgage. Jasveer dies at a time when the house is valued at £200,000 and the mortgage outstanding is £50,000. Jasveer’s share of the house is one-half of the value of £200,000 (which is £100,000). This value can then be reduced by Jasveer’s share of the mortgage.

Unless there is an agreement to the contrary, their interests are not altered in nature or extent by any subsequent repayment of the mortgage. You should assume they are jointly and severally liable to repay the debt unless it is claimed or it appears that they are not (IHTM15064).