What Happens to Jointly Owned Property in the Administration of Estates?

To determine ownership of property where property is jointly owned by two or more people, and one predeceases the other(s), we must first determine how the property was owned. The question would then be, were they “joint tenants” or “tenants in common”? [sidebar: Joint tenants – typically married couples – have equal rights and responsibilities over the jointly owned property, i.e. 100% each, on the other hand, tenants in common – typically business partners, siblings, friends – have specific percentage interests in the jointly owned property, i.e. 50-50; 60-40, etc.]

If they were joint tenants, then the rule or law of survivorship would be applicable. This means that the deceased owner’s rights disappear, and the surviving joint owner automatically becomes the sole owner of the property. This will not be the case where the joint owners were tenants in common. Here, the percentage portion of the property owned by the deceased joint owner will devolve to his/her Estate and will be distributed in accordance with his/her Will (if he/she had one).

Basically, the property will be distributed in accordance with the last wishes of the last survivor in a joint tenancy but in a tenancy in common, the portion of the deceased owner will move to his/her estate and be distributed accordingly.

Married couples who own property jointly are generally regarded as joint tenants in which case where one spouse passes, the surviving spouse becomes the sole owner of the property, and what happens to that property after the death of the surviving spouse will be determined in line with his/her last wishes (if he/she had a Will) or may fall into intestacy even if the previously deceased spouse had a Will [another sidebar: If the title documentation for the property, however, provides for a tenancy in common, the property will be distributed as such regardless of whether the joint owners were married].

A bit of challenge comes when both spouses pass on in the same incident. The common law position (applicable in most states in Nigeria) is that without evidence, there can be no presumption of who died first and so each spouse will be taken to have survived the other.? This creates some challenges, especially in a situation where there is no such evidence. However, some states have introduced legislation to guide this. For example, the Wills Law of Lagos State provides in section 23 that “where two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such death (subject to any order of the court), shall be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.” While this helps, it also creates a new set of challenges which we will not go into right now.

Suffice it to say, that a definitive act of making a Will and including a survivorship clause can deal with this uncertainty and save your beneficiaries the stress of litigation.

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