Quigley v Masterson  EWHC 2529 (Ch) raises an interesting point about the severance of a beneficial joint tenancy.
The background is sadly familiar. The late Mr Pilkington formed a relationship with Mrs Masterson. They lived together in a house as joint legal and beneficial tenants. Their relationship broke down and Mrs Masterson (together with a daughter from a previous marriage) moved out.
Since he was 16 years senior to Mrs Masterson, it is not surprising that it was his (or his legal advisor’s) mind that first turned to severance of the joint tenancy. His solicitors attempted to do so by notice under that section familiar to all law students: s36(2) of the Law of Property Act 1925. They were unsuccessful.
In the following year, Mr Pilkington’s health began to decline. He had an incurable degenerative dementia and surgery for bowel cancer. At age 78 there was clearly a very real fear that he would soon die. Nothing further was done about severing the join tenancy – quite possibly because Mr Pilkington and Mrs Masterson had a rapprochement. Although she did not return to live with him, she made regular visits to assist in his care.
Some 4 years later and Mr Pilkington’s health had deteriorated to the point where he was moved to private residential care. The local council met the cost of his care but would require repayment at a later date. Everyone assumed that that cost would be borne out of Mr Pilkington’s share of the property. Unfortunately, Mr Pilkington now lacked mental capacity.
Mr Pilkington’s daughter, Mrs Quigley enters the story. She proposed that she become deputy for Mr Pilkington. Mrs Masterson disagreed and felt she was in a better position. After contested litigation in the Court of Protection, Mrs Quigley was appointed deputy, but her authority did not extend to sale of the home which was left to Mrs Masterson.
Shortly after Mrs Quigley’s appointment, but before she had exercised her authority in any way (at least any way of which the court was aware), Mr Pilkington died.
Mrs Quigley, as Mr Pilkington’s personal representative, and Mrs Masterson were then left to argue whether there had been severance of the joint tenancy. The argument ended up before a a Deputy Adjudicator for the Land Registry, who found for Mrs Masterson. On Mrs Quigley’s appeal, Henderson J was left to consider the question.
The Deputy Adjudicator had found that earlier efforts to sever the joint tenancy by notice had been ineffective (as I recorded in my summary). That point was not contested on appeal. Mrs Quigley made two arguments: first that the conduct by her of proceedings before the Court of Protection indicated that both parties considered that the joint tenancy had been severed. Both parties had referred to Mr Pilkington’s interest as being “50%” of the property.
This argument failed. Henderson J found that Mrs Quigley was not Mr Pilkington’s deputy during the Court of Protection litigation and so her actions could not be attributed to him. There was no conduct on his behalf on which a finding of severance by conduct could be based.
But, said Mrs Quigley, after being appointed deputy I did nothing at all, which indicates that I adopted all that previous conduct in severing the joint tenancy. I would have had to take some definite action to deny my previous conduct which I did not. Nonsense, thought Henderson J. That sort of argument would be a recipe for confusion. When would the severance take place? Not immediately because Mrs Quigley would be bound to consider the point in exercise of her proper duty as deputy and perhaps take legal advice. There was, in any case, no evidence she had done either.
Mrs Quigley’s second argument was that Mrs Masterson’s communications to the Court of Protection – in her application and witness statement – both very clearly indicated that she treated Mr Pilkington’s share as 50%. That, said Mrs Quigley, was a section 36 notice if ever there was one.
This was countered by an interesting argument: these notices were served on Mrs Quigley not Mr Pilkington. There could not have been service. Even if service on Mrs Quigley did become service on Mr Pilkington when she took office as deputy, her power to act did not arise until she had put up the relevant security, which she had not done before Mr Pilkington’s death.
Henderson J thought the second argument worked. Mrs Masterson’s statements did serve as a notice of severance which became effective when Mrs Quigley became deputy. The fact that she was at that stage not permitted to exercise her powers did not matter: she was at least able to passively receive notices directed at Mr Pilkington.
Although the fact of this case may seem a little convoluted, in my experience this kind of interaction of capacity and communication is common in severance disputes. Sadly it is in just this kind of situation where concerns about severance arise.