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Home » Williams v Hensman (1861)

Williams v Hensman (1861)

Citation: Williams v Hensman (1861) 70 E.R. 862
Jurisdiction: United Kingdom
Court: Chancery Court
Presiding Judge: Page-Wood VC
Area of Law: Trusts Law – Co-ownership and Severance of Joint Tenancy

The decision in Williams v Hensman (1861) remains a leading authority in English law on the subject of severance of joint tenancy. It has particular relevance in the context of trusts and co-owned property, including land. The case established the three principal ways in which a joint tenancy may be severed, a doctrine still widely referred to in both legal practice and academic commentary.

In English law, when two or more individuals hold property together, they may hold it either as joint tenants or as tenants in common. A joint tenancy includes the right of survivorship – when one co-owner dies, their share automatically passes to the others.

A tenancy in common, by contrast, treats each owner’s share as distinct, and it may be passed to heirs or disposed of individually. The judgement in Williams v Hensman clarified how co-owners can move from one form to the other.

Factual Background of Williams v Hensman

In Williams v Hensman, a mother bequeathed a fund of money to be held on trust for the benefit of her eight children. The trust terms specified that the money should be invested, and the income generated from such investment would be paid to the children upon the mother’s death.

The children, though some were still minors, agreed that the money should be invested in a particular mortgage fund. Their agreement reflected a departure from the original strict terms of the trust. However, despite being underage, they collectively supported this investment approach.

At a later stage, a portion of the fund was advanced to one of the children individually. The other seven children signed a formal covenant, in which they stated that:

  1. They would not hold the trustee liable if the advance created any shortfall in their own future shares.
  2. They would indemnify the trustee for any claims, damage or expense arising from the decision to advance that sum to their sibling.

This series of events raised a critical legal question: Did these actions result in a severance of the joint tenancy originally established by the trust?

Legal Issues

The court in Williams v Hensman had to consider multiple legal issues, most notably:

  1. What type of co-ownership existed between the children over the trust fund – joint tenancy or tenancy in common?
  2. Whether a joint tenancy could be severed by the actions of the beneficiaries.
  3. Whether the particular actions taken by the beneficiaries in this case – namely, consenting to the advance and signing the indemnity covenant – amounted to a valid severance in the eyes of the law.

These questions were critical not just to the immediate distribution of the fund, but also to the future rights of the beneficiaries, especially concerning survivorship and individual entitlement.

Williams v Hensman Judgement

The court in Williams v Hensman held that the original trust arrangement created a joint tenancy between the eight children. However, it found that the joint tenancy had been severed as a result of the actions taken by some of the beneficiaries.

Page-Wood VC, delivering the judgement, accepted that the beneficiaries’ actions were sufficient to transform their interest from joint tenancy to tenancy in common. Specifically, the act of consenting to the advance and signing the covenant demonstrated that the beneficiaries were treating their interests as individually separate, rather than as part of a unified whole.

The Three Modes of Severance

The most significant contribution of Williams v Hensman (1861) to English property and trusts law is its articulation of three distinct methods by which a joint tenancy may be severed. These are:

1. Unilateral Act on One’s Own Share

The first mode of severance involves a single joint tenant taking an action that affects only their own share. For example, a joint tenant may sell or mortgage their interest, or even assign it to someone else. Such an act breaks the joint tenancy with respect to that individual’s share, converting it into a tenancy in common, though the others may remain joint tenants among themselves.

Page-Wood VC explained that this type of severance is effective even if the other joint tenants are not consulted, and even if they are unaware of the act.

2. Mutual Agreement

The second mode arises when all joint tenants agree – either expressly or by clear mutual understanding – to end the joint tenancy and hold the property as tenants in common instead. The agreement must be genuinely mutual, not simply an assumption or unilateral declaration.

In Williams v Hensman, the judge noted that such agreements may be formal or informal, but the intent must be shared and clearly directed at altering the nature of the co-ownership.

3. Course of Dealing

The third method of severance can occur through a course of dealing, where the conduct of all parties implies that they are treating their interests as separate, rather than unified under a joint tenancy. This may happen even in the absence of a formal agreement or individual act of severance.

However, this approach requires a consistent and mutual pattern of behaviour that indicates a shared understanding. A mere private intention, or statements made by one joint tenant behind the backs of the others, is not sufficient.

Page-Wood VC clarified that, for severance through course of dealing to be valid, it must involve conduct which alters the position of all the parties, not just one or two.

Conclusion

Williams v Hensman (1861) remains a cornerstone of English co-ownership law. By setting out the three ways in which a joint tenancy may be severed, it offers clarity and structure to an area of law that frequently involves disputes over intention and entitlement.

The case illustrates how even informal actions, when clearly mutual or consistently applied, can have lasting legal consequences on the ownership structure of trust property.

The decision in Williams v Hensman not only resolved a specific question concerning eight siblings and a trust fund but also shaped the legal landscape for countless future cases involving shared ownership and beneficiary rights. Its continued citation by courts and legal texts reflects its enduring value in the interpretation and application of property law.