Cite as F080403
Filed Aug. 4, 2021, Fifth District
By Golnaz Yazdchi
Sheppard Mullin Richter & Hampton LLP
Headnote: Joint Tenancy – Severance by Will
Summary: To unilaterally sever a joint tenancy interest by way of a will, the language must express a clear and unequivocal intent to sever the joint tenancy, and be recorded.
Ruth Briggs (Ruth) had two children (the Pearce parties) when she married Charles John Briggs (Jack) in 1949, and together they adopted three children (the Briggs parties). Ruth and Jack took title to the Gibson property as joint tenants when they bought it in 1959. Briggs Oil, a partnership in which Jack had a fifty percent interest, purchased the Rosedale property in 1955. Ruth’s 1983 will stated that all property she co-owned with Jack was intended to be community property, which would ultimately be divided amongst her five children after Jack’s death. After Ruth’s 1988 death Jack, the named executor, never probated her will. Instead, Jack executed and recorded an affidavit of death of joint tenant concerning the Gibson property. Under Jack’s original will, his estate was to be divided in equal shares amongst the five children. Jack thereafter revoked his will and created a trust and new pour-over will, and transferred both the Gibson and Rosedale properties into the trust. The Briggs parties were each one-third equal residual beneficiaries of the trust, to the exclusion of the Pearce parties. Following Jack’s death, the Pearce parties and the Briggs parties brought competing petitions seeking determinations as to the rightful owner of the properties. The Pearce parties claimed interests in the two properties for Ruth’s estate, while the Briggs parties argued that the properties belonged entirely to Jack’s trust. The trial court found in favor of the Briggs parties.
The appellate court affirmed. As to the Gibson property, Ruth’s will did not sever the joint tenancy at the time the will was executed because the language did not reflect a clear and unequivocal intent, on Ruth’s part, to sever the joint tenancy. Even if such language were present the will would have to have been recorded in order to effectuate a severance of joint tenancy at the time the will became operative, which was at Ruth’s death. Nor was there an agreement between Ruth and Jack to transmute their interests to community property. As to the Rosedale property, Ruth had a community property interest in Jack’s partnership interest consisting of the partner’s share of the profits, but not in the partnership’s underlying asset. The partnership dissolved after Ruth’s death, thus Ruth did not acquire a community property interest. All other claims, including conversion, were time barred.