Plaintiff v Defendant

2 Ian Neville Alcock, the deceased, died on 8 October 2024, leaving a last will dated 10 May 2024. Probate of the will was granted to Claire Jeanette Alcock, the defendant, on 9 January 2025.

3 The plaintiff and the defendant are daughters of the deceased.

4 On 2 June 2005, the deceased and Thelma Joyce Bruce became the registered proprietors of a property in Yarrawonga, Victoria (the 'property') as tenants in common in equal shares.

5 Prior to his death, on 17 March 2010 the deceased made a declaration of trust (the 'declaration of trust') to the effect that he held his half share in the property on trust for himself and the plaintiff**,** as joint tenants in equity. The declaration of trust provides:

... THE SAID TRUSTEE HEREBY ACKNOWLEDGES AND DECLARES that as from the date that he executes this Declaration of Trust he holds all of his right title and interest in the Property in Trust for himself and GAYLE PATRICIA NICHOLSON as joint proprietors and the Trustee hereby agrees that he will, at the request and cost of himself and GAYLE PATRICIA NICHOLSON convey his right title and interest in the Property to such person or persons or otherwise deal with it as [sic] such time or times and in such manner as he is directed or appointed.

6 On 31 January 2024, the deceased executed a document entitled 'Deed of Severance of Joint Tenancy' (the 'deed of severance') by which he purported to sever that joint tenancy. The preamble to the deed of severance recites, inter alia, that

... it is now my intention to make provision for my grandchildren and great grandchildren from my estate rather than Gayle [alone].

7 The operative part of the deed of severance provides:

In consideration of the contents of this Deed, I do:

1. Hereby irrevocably and unilaterally sever any joint tenancy held by me, together with any other tenant, and in particular, the joint tenancy created by the Declaration of Trust with myself and Gayle as joint proprietors of all of my right, title and interest in the Property.
2. I record that the effect of the severance of the joint tenancy is such that I and the said Gayle no longer hold the Property as joint tenants but as tenants in common.

8 In his final will, the deceased gave the whole of his estate to the plaintiff's three grandchildren and the defendant's two children.

9 The issue in this proceeding is whether the deed of severance was effective to sever the joint tenancy created by the declaration of trust. The plaintiff submits that the deed of severance is void and of no force and effect. The defendant submits that the deed of severance effectively severed the joint tenancy, and that, as a consequence, the plaintiff and the deceased's interests were held in the form of a tenancy in common at the time of the deceased's death.

10 Pursuant to s 62 of the S_upreme Court Act 1986,_ the Court may determine any proceeding without an oral hearing and entirely on the basis of written submissions, without the appearance of the parties. Both parties consented to the Court determining the matter on the papers.

11 Having regard to s 62(2) of the S_upreme Court Act 1986_, the written submissions filed by both parties, the modest size of the estate and the consent of both parties, I have determined that it is in the interests of justice for the Court to determine this proceeding without an oral hearing.

12 The plaintiff relied on written submissions filed 16 January 2026, and her affidavit affirmed 22 October 2025 together with the exhibits therein.

13 The defendant relied on written submissions filed 30 January 2026, her affidavit affirmed 22 December 2025, and the affidavit of Narelle Marie Neagle, solicitor, sworn 4 December 2025 - together with the exhibits therein.

14 The following matters were agreed between the parties:

(a) the deceased executed both the declaration of trust and the deed of severance and neither document is infected by any incapacity on behalf of the deceased or other vitiating factor;

(b) the deceased was at the date of his death, and at all material times had been, the registered proprietor of a one half (50%) interest in the property;

(c) by virtue of the execution of the declaration of trust, the deceased's half interest in the property was held by him as joint proprietor with the plaintiff in equity;

(d) the deceased's will dated 10 May 2024 is valid and leaves the residue of his estate, after the payment of estate and related expenses, equally between the plaintiff's grandchildren (of which there are three, all minors) and each of the defendant's two children, also minors (i.e. each beneficiary is entitled to one fifth or 20% of the estate residue);

(e) the defendant is the legal personal representative of the deceased;

(f) the value of the estate's interest in the property is very modest; and

(g) it is not disputed that the plaintiff is entitled to at least 25% of the property.

15 The parties also agreed that, on a proper and objective construction of the deed of severance, it was clear that the deceased intended to sever the joint tenancy.

16 The parties diverged as to whether the deed of severance was effective to sever the equitable joint tenancy.

(a) the fact that the interest created by the declaration of trust was as joint proprietors indicates that the doctrine of survivorship applies;

(b) the trust was not limited to one half of the deceased's interest in the property, but extended to 'all of his right title and interest';

(c) things may have been different if, for example, the deceased had said that he was gifting to the plaintiff one half of his interest in the property as joint tenant in equity. Had that been done, the deceased may well have been free to deal with his remaining half interest as he sought fit, unconstrained by the terms of the trust, including by severing the joint tenancy;

(d) because the declaration of trust created a trust wherein the deceased was the trustee, the deceased thereafter owed the plaintiff fiduciary obligations and he could only deal with the property in accordance with the terms of the declaration of trust and the law applicable to trusts;

(e) a dissolution of the joint tenancy would be a fundamental alteration to the trusts upon which the property was held;

(f) although the declaration of trust contained a provision which authorised the deceased, as trustee, to deal with the property as he was directed or appointed, such provision was only enlivened at the request of the deceased and the plaintiff. The deceased had no power to unilaterally sever the joint tenancy which was subject to the terms of the declaration of trust; and

(g) the deceased was not free to deal with his interest in the property as if it were beneficially his own, rather than trust property.

18 Accordingly, the plaintiff submitted that the deed of severance was not effective to sever the joint tenancy created by the declaration of trust.

(a) the deed of severance was executed by the deceased in his capacity as equitable joint tenant, rather than as trustee;

(b) a joint tenancy may be severed by a unilateral act of one of the joint tenants;

(c) for the purposes of unilateral action, there must be an effective alienation 'in a way which results in a change in the legal or equitable estates in the relevant property';[1]

(d) since the deceased's interest as an equitable joint tenant was not a legal interest, the requirements for dealing with legal interests in land - for example, the lodgement of a transfer of land - do not apply;

(e) the holder of an equitable interest in real property may dispose of that interest by an instrument in writing signed by him or her;[2] and

(f) the deed of severance purported to sever the joint tenancy in that way.

20 I accept the plaintiff's submissions that the deceased, in his capacity as trustee, could only deal with the property in accordance with the terms of the trust and the law applicable to trusts.

21 However, the terms of the deed of severance make it clear that the deceased was not purporting to vary the trust created by the declaration of trust or to deal with the legal interest in the property. Rather, the terms of the deed of severance objectively demonstrate that the deceased was purporting to act in his capacity as the holder of an equitable interest.

22 The question then arises as to whether the deceased could unilaterally sever his equitable joint tenancy, and if so, whether the deed of severance was effective for that purpose.

23 A severance converts an entitlement in an entire estate or interest into a proportionate share held as a tenant in common. As noted in Butt's Land Law:

[6.490] ... The right to sever is inherent in a joint tenancy. ... Severability is the 'escape hatch' available to each joint tenant. The other joint tenant(s) cannot prevent a severance, unless they can invoke a contractual or equitable limitation.

Strictly speaking, joint tenants do not have proportionate shares in the land. It might therefore be asked how a joint tenant can convert his or her entitlement in the entire estate or interest into a proportionate share held as tenant in common. But for the purpose of severance a joint tenant is regarded as having a potential share in the land commensurate with that of the other joint tenants. ... This potential share the joint tenant can deal with unilaterally during his or her lifetime. By so dealing with it, that share may be 'severed' from the other shares and converted into an 'aliquot' undivided share held in common, not jointly. In the result, the (former) joint tenant's risk of loss through failure to survive the other joint tenants is avoided - but so too, of course, is the prospect of gain through surviving the other joint tenants.

[6.500] Once severed, a joint tenancy cannot be 'healed'; it is severed once-and-for-all.[3]

24 The Court of Appeal in Whitty v Talia, quoting Sir W Page Wood VC in Williams v Hensman[4] ('Williams'), recognised that a joint tenancy, including in respect of real property, may be severed in three ways:

(a) by unilateral act of one of the joint tenants;

(b) by mutual agreement; or

(c) by a course of conduct showing intention to hold the property as tenants in common.[5]

A joint-tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint-tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund - losing, of course, at the same time, his own right of survivorship. Secondly, a joint-tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common.[6]

26 The deed of severance executed by the deceased in the current matter purported to sever the joint tenancy by the first method, namely unilateral severance.

27 It has been held, in the context of a legal interest in real property, that a unilateral declaration of intention will not suffice to sever a joint tenancy. Rather, there must be an effective alienation of the property, as

... the severance of a joint tenancy can only be brought about by the destruction of one of the so-called four unities: see Blackstone, Commentaries on the Law of England (1778), vol. 2, pp. 185-186. Unilateral action cannot destroy the unity of time, of possession or of interest unless the unity of title is also destroyed, and it can only destroy the unity of title if the title of the party acting unilaterally is transferred or otherwise dealt with or affected in a way which results in a change in the legal or equitable estates in the relevant property. A statement of intention, without more, does not affect the unity of title.[7]

28 Under the Torrens system, an effective alienation of a legal interest in land will be effected upon registration. An equitable interest may arise before registration as long as the transferor can no longer resile from the transaction. In Australia, it is not necessary for there to be communication or notice of any intent to sever.[8]

29 There is no reason in principle why the holder of an equitable interest ought not be permitted to effect a unilateral severance. It is not in issue that a beneficiary may dispose of their equitable interest, for example by assigning their interest to another person or declaring a trust over such interest in favour of third parties.

30 Further, on the facts of Williams, which involved beneficiaries to a joint fund severing a joint tenancy by acting in a way which was not reconcilable with the existence of a joint tenancy, it was implicitly recognised that an equitable joint tenancy could be severed unilaterally.

31 What differs in respect of an equitable interest, compared to a legal interest, is what is required for an effective alienation.

32 In respect of land, s 53(1) of the Property Law Act 1958 (the 'Act') provides:

(1) Subject to the provisions hereinafter contained with respect to the creation of interest in land by parol -

(a) no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by his agent thereunto lawfully authorized in writing, or by will, or by operation of law;

(b) a declaration of trust respecting any land or any interest therein must be manifested and proved by some writing signed by some person who is able to declare such trust or by his will;

(c) a disposition of an equitable interest or trust subsisting at the time of the disposition must be in writing signed by the person disposing of the same, or by his agent thereunto lawfully authorized in writing or by will.

33 I am satisfied that s 53(1)(c) is applicable to the facts of this case.

34 In Williams, Wood VC referred to a severance as a disposition, stating '[e]ach one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund'.[9]

35 In the current matter, the disposition from the deceased was to the deceased himself, rather than to a third party. But there do not appear to be any additional or particular requirements, beyond s 53 of the Act, for there to be an effective alienation in such circumstances.

36 The deed of severance is in writing, signed by the deceased and witnessed by the deceased's solicitor. Accordingly, I am satisfied that the deed of severance met the requirements of s 53(1)(c) of the Act, and was valid and effective to destroy the unity of title and sever the equitable joint tenancy.

[1] Corin v Patton (1990) 169 CLR 540, 548.

[2] Property Law Act 1958, s 53(c).

[3] Brendan Edgeworth, Butt's Land Law (Thomson Reuters, 7th ed, 2017), 267-268.

[4] [1861] EngR 701; 70 ER 862, 867; [1861] EngR 701; (1861) 1 John & H 546, 557-558.

[5] Whitty v Talia (2023) 72 VR 1, 6 [24].

[6] Williams v Hensman [1861] EngR 701; 70 ER 862, 867; [1861] EngR 701; (1861) 1 John & H 546, 557.

[7] Corin v Patton (1990) 169 CLR 540, 548.

[9] Williams v Hensman [1861] EngR 701; 70 ER 862, 867; [1861] EngR 701; (1861) 1 John & H 546, 557 (emphasis added).