Public Trustee v Taylor - [2020] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
PUBLIC TRUSTEE v TAYLOR & ORS
[2020] SASC 122
Judgment of The Honourable Justice Stanley
2 July 2020
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - MATTERS RELATING TO BENEFICIARIES - PRESUMPTION OF DEATH AND SURVIVORSHIP
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - WHAT INTEREST PASSES - JOINT TENANCY AND TENANCY IN COMMON - JOINT TENANCY
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - TESTAMENTARY DISPOSITIONS GENERALLY - WHAT PROPERTY TRANSFERABLE BY WILL
The Public Trustee brought an application pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act) seeking advice and direction regarding the disposition of jointly owned assets of Sigrid Karla Todt and Karl Heinz Todt following their deaths on 20 September 2015. Karl and Sigrid Todt were husband and wife.
The Public Trustee sought the following orders:
1. A declaration that the evidence is insufficient to establish that either of Karl Heinz Todt deceased or Sigrid Todt deceased died before the other.
2. Advice and direction that the land comprised in Certificate of Title Register Book Volume 5259 Folio 111 being the house property situated at and known as 44 Boord Street Semaphore South in the State of South Australia and funds standing to the credit of a joint account of Karl Heinz Todt and Sigrid Todt at any bank or financial institution, are each not subject to any disposition contained in the wills of Karl Heinz Todt and Sigrid Todt.
3. Advice and direction that the first defendant Harold Raymond Taylor in his capacity as the executor and trustee of the will of Karl Heinz Todt and the plaintiff the Public Trustee in its capacity as executor and trustee of the will of Sigrid Todt are each entitled to administer the said land as on an intestacy on behalf of the next of kin of Karl Heinz Todt and Sigrid Todt respectively.
4. Advice and direction that the persons entitled to share in the distribution of the said land are as to one moiety the next of kin of Karl Heinz Todt and as to the other moiety the next of kin of Sigrid Todt.
5. An order that the Registrar-General record an entry on the relevant Certificate of Title Register Book Volume 5259 Folio 111 for an application to be made by Harold Raymond Taylor to be the registered proprietor an estate in fee simple of one undivided moiety as the executor of the will of Karl Heinz Todt deceased or otherwise in the estate of Karl Heinz Todt deceased and for an application to be made by the Public Trustee to be the registered proprietor of one undivided moiety as the executor of the will of Sigrid Todd deceased or otherwise in the estate of Sigrid Todt.
6. A declaration that the net funds standing in the bank account in the joint names of Karl Heinz Todt and Sigrid Todt at any bank or financial institution are due and payable as to 50 per cent to the first defendant Harold Raymond Taylor as executor of the estate of Karl Heinz Todt to be distributed as on an intestacy and as to 50 per cent by Public Trustee as executor of the estate of Sigrid Todt to be distributed as on an intestacy.
7. Costs of this action as adjudicated between solicitor and client be paid out of the estates of Karl Heinz Todt and Sigrid Todt in equal shares.
8. That any interested person may apply for further orders and directions.
The Public Trustee is the executor of the will of Sigrid Todt made 8 February 1995.
The first defendant, Harold Taylor, is the executor appointed under Mr Todt’s last will dated 24 February 2015. He is the sole beneficiary under that will and did not oppose the orders sought in paragraphs 1, 5, 6 and 7 but opposed the orders sought in paragraphs 2, 3 and 4.
The second defendant, Dieter Kuehne, is the son of Sigrid Todt. He is the sole beneficiary under her will and her next of kin under an intestacy. He opposed the orders sought.
The third defendant, Heike Kock, and the fourth defendant, Kerstin Berg, are the next of kin of Karl Todt under an intestacy. They supported the orders sought.
Held per Stanley J, granting the orders sought:
1. In this case the evidence does not prove that either of the joint tenants survived the other. They died commorientes.
2. The deceaseds’ wills fail to have any dispositive effect on the joint assets and thus the joint assets do not pass under the deceaseds’ wills. The joint assets fall to be administered in an intestacy for the benefit of the deceaseds’ next of kin.
3. The orders sought by the Public Trustee should be made.
Administration and Probate Act 1919 (SA) s 45, s 46, s 69, s 9(1); Conveyancing Act 1919 (NSW) s 35; Property Law Act 1958 (Vic) s 184; Succession Act 1981 (Qld) s 65; Presumption of Survivorship Act 1921 (Tas) s 2; Civil Law (Property) Act 2006 (ACT) s 213; Property Law Act 1969 (WA) s 120; Law of Property Act 2000 (NT) s 216; Administration and Probate Act 1929 (ACT) s 49Q, referred to.
Bradshaw v Toulmin (1784) 2 Dick. 633; 21 ER 417, applied.
Wright v Gibbons (1949) 78 CLR 313; Cooke v Miller (Estate) (2005) BCCA 263; Carr-Glynn v Frearsons [1999] Ch 326; Vagg v McPhee (2013) 85 NSWLR 154; In Re Caire: Public Trustee v Lykke Unreported, Action No. 1517 of 1927 (Angas Parsons J); In the Matter of the Estates of Ronald Ross Miller and Ila Gladys Miller Unreported, Action No. 1226 of 1958, Ross J; Re Arnold Unreported, No. 460 of 1963, Deputy Master Olsson; In the Matter of the Estates of Hans Karl Eugen Schlicker and Rosina Schlicker Unreported Action No. 1158 of 1995, Judge Anderson; In the Estates of Robert Brian Johnston and Dorothy Ann Johnston (Deceased) Unreported, Action No. 1701 of 2011, Judge Lunn; In the Estate of Dawson (Deceased) [2016] SASC 89; In the Estate of Thiel [2017] SASC 1; Macchia v Public Trustee (2008) 251 ALR 385; Carolyn Deigan as Executrix for the Estate of the Late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299, considered.

PUBLIC TRUSTEE v TAYLOR & ORS
[2020] SASC 122
Testamentary Jurisdiction

STANLEY J: The Public Trustee makes an application pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act) seeking advice and direction regarding the disposition of jointly owned assets of Sigrid Karla Todt and Karl Heinz Todt following their deaths on 20 September 2015. The evidence does not establish who died first.
Sigrid Todt and Karl Todt were husband and wife.
The Public Trustee is the executor of the will of Sigrid Todt made 8 February 1995.
The first defendant, Harold Taylor, is the executor appointed under Mr Todt’s last will dated 24 February 2015.
The Public Trustee brings the application for advice and directions in relation to the disposition of the jointly owned assets of Mr and Mrs Todt. Neither of the deceaseds’ wills have been admitted to probate. Caveats have been lodged in relation to both estates.
The Public Trustee has also brought applications for orders pursuant to s 9(1)(d) of the Public Trustee Act 1995 (SA) to administer their estates on the basis that they have made wills and appointed executors but probate has not been obtained within four months from the death of the deceased. On 5 March 2019, the Court ordered that administration of the deceaseds’ estates of Mr and Mrs Todt be granted to the Public Trustee pursuant to s 9(1)(d).
Mr and Mrs Todt were joint tenants of the land comprised in Certificate of Title Register Book Volume 5259 Folio 111, known as 44 Boord Street, Semaphore South. This was their domestic residence. It is the principal asset of each of their estates. In addition, they jointly owned a motor vehicle and held cash in a joint bank account. There is no dispute that the assets were jointly owned. The real estate may be worth $600,000. It has stood vacant since their deaths. The cash in the joint bank account is in the vicinity of $60,000.
At issue on the application for advice and direction is how is the Public Trustee to deal with the jointly owned assets of the deceased.
The Public Trustee seeks the following orders:
1A declaration that the evidence is insufficient to establish that either of Karl Heinz Todt deceased or Sigrid Todt deceased died before the other.
2Advice and direction that the land comprised in Certificate of Title Register Book Volume 5259 Folio 111 being the house property situated at and known as 44 Boord Street Semaphore in the State of South Australia and funds standing to the credit of a joint account of Karl Heinz Todt and Sigrid Todt at any bank or financial institution, are each not subject to any disposition contained in the wills of Karl Heinz Todt and Sigrid Todt.
3Advice and direction that the first defendant Harold Raymond Taylor in his capacity as the executor and trustee of the will of Karl Heinz Todt and the plaintiff the Public Trustee in its capacity as executor and trustee of the will of Sigrid Todt are each entitled to administer the said land as on an intestacy on behalf of the next of kin of Karl Heinz Todt and Sigrid Todt respectively.
4Advice and direction that the persons entitled to share in the distribution of the said land are as to one moiety the next of kin of Karl Heinz Todt and as to the other moiety the next of kin of Sigrid Todt.
5An order that the Registrar-General record an entry on the relevant Certificate of Title Register Book Volume 5259 Folio 111 for an application to be made by Harold Raymond Taylor to be the registered proprietor an estate in fee simple of one undivided moiety as the executor of the will of Karl Heinz Todt deceased or otherwise in the estate of Karl Heinz Todt deceased and for an application to be made by the Public Trustee to be the registered proprietor of one undivided moiety as the executor of the will of Sigrid Todd deceased or otherwise in the estate of Sigrid Todt.
6A declaration that the net funds standing in the bank account in the joint names of Karl Heinz Todt and Sigrid Todt at any bank or financial institution are due and payable as to 50 per cent to the first defendant Harold Raymond Taylor as executor of the estate of Karl Heinz Todt to be distributed as on an intestacy and as to 50 per cent by Public Trustee as executor of the estate of Sigrid Todt to be distributed as on an intestacy.
7 Costs of this action as adjudicated between solicitor and client be paid out of the estates of Karl Heinz Todt and Sigrid Todt in equal shares.
8Any interested person may apply for further orders and directions.
The defendants and their positions
The first defendant, Mr Taylor, who is the sole beneficiary under Mr Todt’s last will, does not oppose the orders sought in paragraphs 1, 5, 6 and 7 but opposes the orders sought in paragraphs 2, 3 and 4.
The second defendant, Dieter Kuehne, is the son of Sigrid Todt. He is the sole beneficiary under her will as well as her next of kin who would take her estate on an intestacy. Mr Kuehne opposes the orders sought. He contends that the joint assets pass under the deceaseds’ respective wills. He further challenges the validity of Karl Todt’s will made 24 February 2015, under which Mr Taylor is the sole beneficiary, apparently on the basis that Mr Todt lacked testamentary capacity, and that an earlier will of Mr Todt made 6 June 2014, under which Mr Kuehne is the primary beneficiary, was Mr Todt’s final valid will.
The third defendant, Heike Kock, and the fourth defendant, Kerstin Berg, the next of kin of Karl Todt under an intestacy support the making of the orders sought by the Public Trustee.
Submissions
The Public Trustee submits that the deceased died commorientes. As a result, there is no proof of survivorship. Accordingly, their respective wills have no dispositive effect in relation to jointly owned assets. It follows that the estate consisting of jointly owned property is to be administered as on an intestacy.
The first defendant submits that the starting point for the determination of how the jointly owned assets of the deceased are to be dealt with is the construction of the wills. He submits that Mr Todt’s will contains a deemed survivorship clause which presumes an order of death and governs the interpretation and operation of the will. In the alternative, the conditional gift in Mr Todt’s will pursuant to clause 6(i) operates according to whether the first defendant survived Mr Todd for 30 days. Plainly he did. Accordingly the first defendant takes whatever it was in the capacity of Mr Todt to convey to him. As the joint tenancy was severed on death, there has been no failure of testamentary disposition and no intestacy arises on Mr Todt’s will. The first defendant and the second defendant take their interests in the jointly held property as tenants in common. Where joint tenants die testate, each set of executors will owe their title to the will which appointed them. This will shatter unity of title severing the joint tenancy. The effect of s 46(1) of the Act is that, where real estate is vested in any person, without a right of survivorship in any other person, it shall on his or her death devolve to and become vested in his or her personal representative as if it were a chattel real. As executor, the first defendant held the deceased’s estate from the moment of death. As there has been a severance of the joint tenancy on death an order pursuant to s 64 of the Real Property Act 1886 (SA) is required to direct the Registrar-General to record a relevant memorial or entry in the Register Book and a declaration should be made that the first defendant is entitled to a half share of the assets as a tenant in common.
The second defendant submits that by reason of the operation of s 46(1) of the Act the right of survivorship in this case is not engaged. The respective interests in the jointly owned real estate and bank account do not remain or devolve upon the respective heirs of the deceased. As there is a will, the parties’ respective interests in the joint tenancy of property devolves upon the executors in accordance with the general law, in respect of personal property, and s 46(1) of the Act in respect of real property. There is nothing in Bradshaw v Toulmin,[1] properly understood, that suggests that property held on a joint tenancy must, upon the right of survivorship not being engaged, be distributed as on an intestacy, ignoring any will. Neither should this be so as a matter of general principle. Previous authorities of this Court to the contrary should not be followed. The proper effect of Bradshaw v Toulmin is that a severance of the joint tenancy is not effected by its devolution after the simultaneous deaths of the joint tenants. The interest devolves as joint tenants. The devolution of real estate upon personal representatives would effect a severance of a joint tenancy as it would destroy the unity of title required for the continuation of a joint tenancy.
[1] (1784) 2 Dick. 633; 21 ER 417.
The third and fourth defendants submit that the critical feature is that the assets in issue were owned by the deceased as joint tenants. Joint tenancy is characterised by two features: the existence of the four unities and the right of survivorship. When a person claims title under a will, that person must establish title to the property in question as against the next of kin. Those entitled to take on an intestacy are prima facie entitled to a deceased person’s estate and the onus is on any person claiming under a will to show that he or she has a superior right. Parties asserting a property interest in the case of joint assets must prove he or she survived the other joint tenant. This is a question of fact. As it cannot be proved which of the deceased survived the other, it cannot be proved that the joint assets were property which passed under either will at the time of death. Consequently the deceaseds’ wills fail to have any dispositive effect on the joint assets. The joint assets do not pass under the wills. They fall to be administered on an intestacy for the benefit of the deceaseds’ next of kin.
The principles of joint tenancy and the right of survivorship
It is convenient to commence with a consideration of some basic principles in relation to joint tenancy and the right of survivorship.
A joint tenancy is characterised by two features: first, the existence of the four unities, of interest, title, time and possession, and secondly, the right of survivorship. The right of survivorship is above all others, the distinguishing feature of a joint tenancy. It is a necessary incident of a joint tenancy. Without it there can be no joint tenancy.[2]
[2] Megarry & Wade, The Law of Real Property (Sweet & Maxwell, 9^th ed, 2019), [12-003].
On the death of one joint tenant, his or her interest in the land passes to the other joint tenant by the right of survivorship. The whole of the jointly owned property remains with the surviving joint tenants, or joint tenant if only one survives, for they have always been entitled to the whole.[3] The totality of their entitlement is not affected by the death of one of their number. The survivors do not succeed to the deceased’s interest, because they have had it all along. This process continues until there is one survivor, who then holds the property as the sole owner.[4]
[3] Wright v Gibbons [1949] HCA 3, (1949) 78 CLR 313 at 329-330.
[4] Megarry & Wade, The Law of Real Property (Sweet & Maxwell, 9^th ed, 2019), [12-003].
A joint tenant cannot make a will of what he holds in jointure, nor can a will sever a joint tenancy.[5] Any severance must take place during the lifetime of the joint tenants. The conclusion that property is held as a joint tenant precludes a testamentary disposition of the property,[6] subject to the subsequent severance of the joint tenancy inter vivos.
[5]    Megarry & Wade, The Law of Real Property (Sweet & Maxwell, 9^th ed, 2019), [12-038] citing Swift d Neale v Roberts (1764) 3 Burr 1488 at 1496.
[6]    Cooke v Miller (Estate) (2005) BCCA 263 at [22].
Accordingly, the right of survivorship cannot be defeated by a joint tenant leaving his or her interest by a will. The provision in the will is simply ineffective. A joint tenancy cannot pass under the will or intestacy of a joint tenant.[7] In each case the right of survivorship takes precedence. As a result it is said that each joint tenant holds nothing and yet holds the whole together with the other. Whether a joint tenant takes everything or nothing depends upon whether or not he or she becomes the last joint tenant to survive.[8]
[7] Carr-Glynn v Frearsons [1998] 4 All ER 225 at 226, [1999] Ch 326 at 328; Vagg v McPhee [2013] NSWCA 29 at [18], [50], (2013) 85 NSWLR 154 at 158, 164.
[8] Megarry & Wade, The Law of Real Property (Sweet & Maxwell, 9^th ed, 2019), [12-003].
The only way assets jointly held can pass under a will is if they are wholly owned by the testator because he or she is the surviving sole joint tenant at the time of the testator’s death.
The principle was enunciated as long ago as 1784 in the judgment of the Lord Chancellor Lord Thurlow in Bradshaw v Toulmin where he said that “if two persons being joint tenants, perish by one blow, the estate will remain in joint tenancy in their respective heirs”. Bradshaw v Toulmin is authority for the proposition that upon the simultaneous death of joint tenants there is no severance of the joint tenancy and the joint assets pass on an intestacy to the deceaseds’ heirs irrespective of whether there was a will.

This approach has been consistently taken by this Court at least since the judgment of Angas Parsons J in In Re Caire: Public Trustee v Lykke[9] and subsequently followed in In the Matter of the Estates of Ronald Ross Miller and Ila Gladys Miller,[10] Re Arnold[11] and In the Matter of the Estates of Hans Karl Eugen Schlicker and Rosina Schlicker,[12] In the Estates of Robert Brian Johnston and Dorothy Ann Johnston (Deceased),[13] In the Estate of Dawson (Deceased)[14] and In the Estate of Thiel.[15]
[9] Unreported, Action No. 1517 of 1927 but noted in (1927) 1 ALJ 307.
[10] Unreported, Action No. 1226 of 1958, Ross J.
[11] Unreported, No. 460 of 1963, Deputy Master Olsson.
[12] Action No. 1158 of 1995, Judge Anderson.
[13] Unreported, Action No. 1701 of 2011, Judge Lunn.
[14] [2016] SASC 89.
[15] [2017] SASC 1.
Consideration
The second defendant submits that I should not follow the approach in my earlier judgment in Thiel as it was decided per incuriam.
I do not accept that submission.
Thiel was a case of commorientes. The evidence could not establish who died first. Each was the principal beneficiary under the other’s will. The difficulty was that they were registered proprietors of real property as joint tenants. I said:[16]
As joint tenants they were each seized with an interest in the whole of the estate. The right of survivorship provides that on the death of a joint tenant, the interest of that tenant passes by the right of survivorship to any remaining joint tenant or tenants. As was observed by the author of The Principles of the Australian Lands Titles (Torrens) System:
The right of survivorship in joint tenancy springs from the unity of interest which exists between joint tenants, joint tenants being said to be seized per my et per tout, that is, each of them has the entire possession as well of every part as of the whole. It follows that, in the case of commorientes, where survivorship cannot be shown, the moieties are transmissible in severalty.
…
In these circumstances it is appropriate that the court declare that the wills of the deceased fail to have any dispositive effect and order the Registrar-General to record an entry on the Certificate of Title that the executor as trustee of each estate is entitled to an estate in fee simple in an undivided moiety and order that the estates of the deceased persons be administered as if on an intestacy.
[Citations omitted]
[16] [2017] SASC 1 at [8], [10].
I am unpersuaded that there is any error in the approach taken by me in Thiel. On the contrary, I remain of the view that it is consistent with the fundamental principles of property law. It is the defining feature of joint tenancy that a joint tenant owns the whole but by himself or herself owns nothing, and accordingly, cannot devise it under his or her will. That is the underlying rationale for the approach in Thiel and the earlier authorities to which I have referred. Accordingly, the terms of the deceaseds’ wills are irrelevant to the issue of who takes the jointly owned property of the deceased. Jointly owned property cannot pass under a will and it cannot pass on a single joint tenant’s intestacy. It follows that the application does not fall to be decided as a matter of construction of the wills as submitted by the first defendant. It falls to be decided on the anterior question of whether a testator can dispose of jointly owned property by his or her will.
For this reason, I exclude exhibit HRT1 to the affidavit of Harold Raymond Taylor sworn 8 March 2018. For the same reason, I exclude exhibits DK3 and DK4 to the affidavit of Dieter Kuehne sworn 28 February 2018. These exhibits were admitted at the trial de bene esse.
Further, the reliance sought to be placed upon the provisions of s 46 of the Act by the first and second defendants is misplaced. It is not engaged in these circumstances. Section 46 provides:
(1) Land will, after the death of the owner, and subject to any mortgage, trust or equity affecting it—
(a) if there is only one executor or administrator, pass to the executor or administrator and become vested in the executor or administrator as if it were a chattel real; or
(b) if there is more than one executor or administrator, pass to the executors or administrators and become vested jointly in the executors or administrators as if it were a chattel real.
(2) Such executor or administrator shall hold and deal with such land, and the same and the proceeds thereof, if sold, shall for all purposes be assets in his hands, and disposable and distributable for the payment of the debts and liabilities of the owner and under his will or intestacy as if such land had been a chattel real.
(3) No widow shall be entitled to her dower, nor husband to his curtesy, out of any lands passing under the provisions of this section.
(4) This section shall not affect the order in which, as between persons claiming under the owner, the assets of his estate are liable for the payment of debts or legacies, nor shall this section be deemed to impose any charge on land for the payment of legacies.
“Owner” is defined in s 49 as:
owner means and includes—
(a) any person (including a married woman) seised, or possessed of, or entitled to any estate or interest in land as before defined, whether legal or equitable (and as to a married woman, whether for her separate use or otherwise) which he or she had, or would were he or she of full age and not under coverture have had power to dispose of by will, and which but for this Act or the Intestate Real Estates Distribution Act 1867, would go to his or her heir-at-law, or executor, or administrator, or to the heir-at-law of the person who was within the meaning of the interpretation clause of the Statute 3 and 4, William IV., c. 106, entitled 'An Act for the Amendment of the Law of Inheritance', the purchaser of such estate or interest in land;
(b) any person (including a married woman) seised, or possessed of, or entitled to any estate or interest in land as before defined (and as to a married woman, whether for her separate use or as her separate property, or otherwise) upon trust, or by way of security for money.
Given that the interests of each joint tenant in the jointly owned property is undevised by each will, the next of kin of each of the deceased acquired legal rights upon the deceased’s death in the form of a chose in action entitling each of them to the due administration of the intestate estate.[17] The machinery by which the benefit of that chose in action is distributed to them is set out initially in s 45 of the Act. Section 45 provides:
From the decease of any person dying wholly or partially intestate, and until administration is granted in respect of his estate, or until an order has been obtained to administer the same, the estate of such deceased person within this State, in so far as not affected by his will, shall be vested in the Public Trustee, in like manner and to the like effect as, immediately after the coming into operation of the Court of Probate Act 1858, the personal estate and effects of persons dying intestate in England vested in the Judge of the said Court of Probate.
[17] Macchia v Public Trustee [2008] WASCA 241 at [44]-[48], (2008) 251 ALR 385 at 396-397.
The non-devisable interests of each of the two deceased joint tenants in the joint assets are vested in the Public Trustee. The Public Trustee under s 45 is a bare trustee until administration is granted or an order obtained to administer the same.[18]
[18] Carolyn Deigan as Executrix for the Estate of the Late James Boyd Lockrey v Barnard James Fussell [2019] NSWCA 299 at [79]-[95], [174]-[176].
Section 46 of the Act does not apply for the following reasons.
First, the purported application of s 46 ignores the basic nature of a joint tenancy, which results in s 45 applying. It cannot vest in both the Public Trustee under s 45 and the personal representative under s 46. Second, the joint property is not land of an owner within s 46 because neither joint owner had had “power to dispose of [the jointly owned real property] by a will”.[19] Third, s 46 in its terms only applies “after death”. But the next of kin have acquired rights over the non-divisible property upon death for the reasons explained above. As a result, even if an administrator took title at some point, he or she would only take legal title subject to the existing vested rights of the next of kin. Fourth, in respect of land not devised by a will, the administrator only takes title after an administration order is made. Before that the land is vested in the Public Trustee pursuant to s 45. Fifth, in any event, land does not vest until registration of title occurs.[20] Sixth, the “devolution” provisions in the Act are merely the machinery by which the property becomes vested in those beneficially entitled. The provisions of the Act do not alter the beneficial devolution of property on death.[21] The process of administration and devolution cannot dictate what interests have already been established by the will. The machinery provisions of the Act do not make property which is not devisable or devised under the will subsequently devisable and devised.
[19] See definition of “owner” in s 49 of the Act.
[20] Edgeworth Butts’ Land Law (2017, 7^th ed), [6.510].
[21] Megarry & Wade, The Law of Real Property (Sweet & Maxwell, 2008), [14-123].
In this case the evidence does not prove that either of the joint tenants survived the other. Consequently the deceaseds’ wills fail to have any dispositive effect on the joint assets. The joint assets do not pass under the deceaseds’ wills. They fall to be administered in an intestacy for the benefit of the deceaseds’ next of kin. The joint assets are transmitted in severalty. Neither estate can benefit from that of the other.
Law reform
The outcome of this application highlights the need for the Parliament to consider whether legislative change should be made to provide a statutory presumption in relation to the order of death where joint tenants die in circumstances where survivorship cannot be proved. In some jurisdictions, for purposes affecting the title to jointly owned property, a statutory presumption has been enacted that death occurred in order of seniority.[22] The presumption can be rebutted by evidence that the deaths did not occur in order of seniority. In Western Australia, the Northern Territory and the Australian Capital Territory if there is doubt as to which joint tenant survived the other, the property devolves as though the joint tenants have held the property as tenants in common in equal shares.[23] South Australia is the only jurisdiction that does not provide a statutory presumption in the case of commorientes.
[22] Conveyancing Act 1919 (NSW) s 35; Property Law Act 1958 (Vic) s 184; Succession Act 1981 (Qld) s 65 (younger presumed to have survived older for a period of one day); Presumption of Survivorship Act 1921 (Tas) s 2; Civil Law (Property) Act 2006 (ACT) s 213.
[23] Property Law Act 1969 (WA) s 120(d); Law of Property Act 2000 (NT) s 216(2)(d); Administration and Probate Act 1929 (ACT) s 49Q(2).
Conclusion
For these reasons I am satisfied I should make the orders sought by the Public Trustee. I direct the Public Trustee to bring into Court minutes of order reflecting these reasons.
I would hear the parties as to costs.