A client receives a letter in the post. It contains legal language about “severance of joint tenancy” and references to the Land Title Act. They don’t understand it. They put it aside, intending to deal with it later. By the time they realise what’s happened, the prescribed response period has lapsed – and the legal landscape of their property ownership has fundamentally changed.
How Joint Tenancy Works (And Why People Rely On It)
When two people own property as Joint Tenants, there’s a critical feature called the “right of survivorship.” When one owner dies, the surviving owner automatically receives the whole property. The property passes outside of that owner’s estate entirely.
This is significant for several reasons. The transfer happens easily with the lodgement of simple Land Titles form. There’s no need to wait for probate. And importantly, because the property never forms part of the deceased’s estate, it cannot be challenged under a family provision application.
Many couples – particularly those in blended families or second marriages – rely on this arrangement deliberately. They want certainty that their share of the family home will pass directly to their partner and not become subject to claims from children of a previous relationship or other potential beneficiaries.
The Severance Mechanism
Here’s what catches people off guard – either joint tenant can unilaterally sever the joint tenancy at any time.
In Queensland, this is typically done by serving notice on the other joint tenant of the intention to sever the joint tenancy. But service by ordinary post is permitted.
The transfer documents are filed at Queensland Titles and are generally processed quite quickly.
Once severed, the ownership converts to Tenants in Common. Each party now owns a distinct, separate share (for example 50/50) rather than an undivided interest in the whole. And crucially, that share now forms part of their estate when they die.
The surviving owner no longer automatically inherits. Instead, the deceased’s share passes according to their will, or intestacy rules if there’s no valid will. And it becomes fully contestable under a family provision claim.
The Timeline Problem
The timeframes involved create a perfect storm of confusion.
Notice is often sent by ordinary post. By the time it arrives, the recipient may have only days (or sometimes less) before the prescribed period expires. The language is technical and unfamiliar. Many people don’t realise the urgency, or don’t understand the implications until it’s too late.
We’ve seen situations where the first indication something has changed is when a client comes to us after a death, expecting to inherit the whole property, only to discover they’re entitled to just 50%, and the other half is now sitting in an estate with multiple competing claims.
Why This Happens
There are many reasons someone might sever a joint tenancy. Sometimes it’s legitimate estate planning and a desire to leave their share to their children rather than a spouse. Sometimes it’s the result of relationship breakdown or family conflict.
But we also see situations involving undue influence, diminished capacity, or pressure from third parties. An elderly joint tenant might be encouraged to sever the tenancy by adult children who stand to benefit. The other joint tenant may have no idea this is happening until the letter arrives.
The Cost of Inaction
If you receive a severance notice and don’t act within the timeframe, your options become limited and expensive.
Challenging the severance after the fact typically requires court proceedings. You may need to establish grounds such as undue influence, lack of capacity, or procedural defects in how notice was served. This is complex, time consuming, and costly litigation – with no guaranteed outcome.
The emotional toll is equally significant. These disputes often occur in the context of grief, family conflict, and the stress of estate administration. What could have been a straightforward transition becomes a prolonged legal battle.
What You Can Do
If you currently own property as a Joint Tenant:
Review your arrangements and make sure you understand how your property is held. Consider whether joint tenancy still serves your intentions, or whether you need additional protections in place.
If you receive a severance notice:
Act immediately. Don’t assume you have time to deal with it later. Seek legal advice before the response period expires. There may be options available to you, but only if you act quickly.
If you’re considering estate planning:
Understand that joint tenancy is not bulletproof. While it offers significant advantages, it can be undone. If certainty of outcome is important to you, discuss additional mechanisms with your legal adviser.
Why We’re Sharing This
We’ve written this because awareness is the best protection. The families we help after a severance has occurred often say the same thing: “I had no idea this could happen.”
The key is acting quickly!
* The information above is general information only and does not constitute legal advice.