Bequeathing share of jointly owned property

This is a really common question and the answer depends entirely on how the property is held, which is a crucial distinction in English property law.

The two types of joint ownership:

There are two ways that two or more people can jointly own property in England and Wales: as joint tenants, or as tenants in common.

Joint tenancy:

If the property is held as joint tenants, each owner does not have a separate identifiable share. Instead, they each own the whole property together. The critical feature of a joint tenancy is the right of survivorship. This means that when one joint tenant dies, the property automatically passes to the surviving joint tenant by operation of law. It does not form part of the deceased's estate and cannot be dealt with by their will.

So if the house is held as a joint tenancy, the answer is no. The deceased person cannot leave "their half" to someone because they do not have a separate half to leave. The will has no effect on that property.

Tenancy in common:

If the property is held as tenants in common, each owner holds a distinct share, which can be equal (50/50) or unequal (for example, 60/40 or 75/25). That share does form part of the deceased's estate and can be left by will to anyone they choose.

So if the house is held as a tenancy in common, the answer is yes. The deceased can leave their share (whether that is half or some other proportion) to whoever they wish under their will.

How to find out which type applies:

The form of co-ownership is usually recorded on the title at the Land Registry. If the official copy of the register contains a "restriction" stating that the survivor cannot give a valid receipt for capital money, this indicates a tenancy in common. If there is no such restriction, it is most likely held as a joint tenancy.

The original transfer deed (TR1 form) may also state how the owners hold the property, and any declaration of trust would be relevant too.

Practical implications:

If someone wants to be able to leave their share of a jointly owned property by will, but the property is currently held as a joint tenancy, it is possible to sever the joint tenancy during their lifetime. This converts it into a tenancy in common, usually in equal shares. Severance can be done by one joint tenant serving written notice on the other under section 36(2) of the Law of Property Act 1925. It does not require the other person's agreement, though there are formalities to follow and the severance should also be reflected at the Land Registry by entering a Form A restriction.

One point that catches people out is that a will which purports to leave a share in a jointly owned property held as a joint tenancy is simply ineffective as to that property. The right of survivorship overrides whatever the will says. This is a frequent source of misunderstanding and family disputes.

So the short answer is: it depends entirely on whether the property is held as a joint tenancy or a tenancy in common. This is the single most important fact to check.