Joint tenants and the right of survivorship
The ownership interest of a joint tenant comes to an end on death.
If one of two joint tenants dies, the survivor is, from then on, the sole owner (the right of survivorship).
This right of survivorship does not mean that the deceased’s interest is transmitted to the survivor. The deceased’s interest ended on death.
Facts of Flowers v Scavella
Flowers v Scavella ([2024] UKPC 25) reached the Privy Council from the Court of Appeal of the Bahamas.
Section 65 of the Probate and Administration of Estates Act 2011 (‘s. 65’) is in the same terms as section 64 of Hong Kong’s Probate and Administration of Estates Ordinance (Cap. 10).
Where a person dies possessed of an interest in property charged with the payment of money, repayment is to come primarily out of that interest, unless the will expresses some other intention.
Mr. Flowers and his wife, Audrey were joint tenants of a house. They borrowed money from the Finance Corporation of the Bahamas (‘FCB’) and the loan was secured on the house.
Mr. Flowers died intestate. The main asset in his estate was a life insurance policy which was realized for $165,000.
Audrey was appointed adminstratrix of the estate and she used most of the $165,000 for a partial repayment of the FCB loan.
Mr. Flowers’ children by his first marriage were also entitled to a share of his estate on the intestacy. They challenged Audrey’s right to use the proceeds in this way.
They argued that s. 65 required her to use the house to repay the loan in exoneration of the $165,000.
The judgment
The children’s argument failed.
The right of survivorship meant that Mr. Flowers did not die possessed of an interest in the property for the purposes of s. 65. No interest in the property formed part of his estate ([20] – [23]).
The fact that the surviving joint tenant also has an interest in the deceased’s estate makes no difference to this conclusion ([24]).
Michael Lower
**Disclaimer**: The information provided on the Hong Kong Land Law blog is for educational purposes only. It is intended to offer a general understanding of the cases or issues discussed, not to provide specific legal advice. Readers should not act upon this information without seeking professional legal advice. The views expressed are my own and do not necessarily reflect the official policy or position of any court or legal authority.