Critically assess the consequences of survivorship destinations and the pitfalls which may be associated with them.

  1. Survivorship destinations in the form of A + B + survivor are often used when taking title to property. Notwithstanding the frequency of their use there appear to be pitfalls for the unwary. The most recent example of such issues being aired in court is Povey v Povey’s Executor [2014] CSOH 68. This post is referenced by Notary public London

 

Critically assess the consequences of survivorship destinations and the pitfalls which may be associated with them.

The convenience of using special destinations has to be balanced with the disadvantages which only becomes apparent on death. As s 20 of Succession (S) Act 1964 permitted wills of heritage, the need for special destinations had gone.

The Barclays Bank Ltd v McGreish 1983 case was widely criticised. It was ruled that property under the survivorship destination passed automatically to the survivor and did not vest in the executor of the deceased for the purpose of paying the deceased’s debts. The survivor took the share free of those debts. This is surely unfair on the creditors.

In Fleming’s Tr, it was held that, survivorship destination took effect and conveyed property on to the widow, but was liable for debts of deceased up to value of property received. They got the property but no value. Thus, Barclays Bank Ltd was overruled.

The problem for the unwary conveyancer dealing with relationship breakdown is illustrated in the in Gardner’s Exrs v Raeburn 1996 case. A property was in joint names of a husband and wife and the survivor. They separated and subsequently divorced. On the divorce the husband paid £40,000 to the wife and the wife conveyed her one half share to the husband. H’s original share destination still kicked in and made property over to her. The court agreed

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