Corin & Anor v Patton

The case of *Corin & Anor v Patton* concerned an appeal to the High Court of Australia regarding the effectiveness of a deceased woman's attempt to sever a joint tenancy over her home. The deceased, Mrs Annette Patton, who was terminally ill, executed three documents in July 1974 with the intention of severing the joint tenancy she held with her husband. She transferred her half interest in the property to her brother, who simultaneously executed a deed of trust agreeing to hold the property as a bare trustee for her. She also executed a will leaving her residual estate, which comprised this half interest, to her four children. Mrs Patton died five days later, before the transfer was registered and while an unregistered mortgage to the State Bank, which held the certificate of title, remained outstanding. The central dispute was whether Mrs Patton had successfully severed the joint tenancy prior to her death.

The High Court was required to determine whether Mrs Patton's intention to sever the joint tenancy had been effectively carried out. Specifically, the Court had to consider the legal effect of the executed transfer and deed of trust in the context of the Real Property Act and the principles governing the completion of voluntary dispositions. The arguments presented below, which the appellant sought to overturn, focused on two main grounds. The first, adopted by McLelland J, was that the transaction created a situation where the brother held the equitable interest on trust for Mrs Patton, who in turn held it on trust for herself, thereby eliminating the need for the intermediate trustee and rendering the severance ineffective. The second ground, accepted by the Court of Appeal, was that Mrs Patton, as the ultimate beneficiary, retained the power to revoke the transaction, thus failing to meet the test for a completed gift or disposition.

The Court's reasoning addressed the requirements for a valid severance of a joint tenancy, particularly in the context of unregistered dealings with Torrens system land. The principles derived from cases such as *Milroy v Lord* and *Anning v Anning* were central to the determination. The Court considered whether Mrs Patton had done all that was necessary to be done on her part to effectuate the transfer of her equitable interest to her brother, such that the equitable interest would pass to him, and he would hold it on trust for her. The Court rejected the argument that the creation of a trust for herself eliminated the severance, finding that the intermediate trust for the brother was a necessary step in severing the joint tenancy. Furthermore, the Court examined the concept of revocation, concluding that once Mrs Patton had taken all necessary steps to divest herself of her equitable interest, she could not unilaterally revoke the transaction. The critical question was whether she had put the legal title beyond her own power to deal with it.

The High Court allowed the appeal, finding that Mrs Patton had taken all the necessary steps to sever the joint tenancy. The Court held that the transfer to her brother, coupled with the deed of trust, effectively passed the equitable interest to the brother, who then held it on trust for Mrs Patton. This constituted a valid severance of the joint tenancy, as Mrs Patton had done all that was necessary to be done on her part to divest herself of her interest and had put it beyond her power to recall. The Court determined that the existence of the unregistered mortgage and the retention of the certificate of title by the bank did not prevent the equitable severance from taking effect.