Kinch v Bullard


Kinch v Bullard 4 All ER 650 is an English land law case, concerning co-ownership of land and an act of severance of a joint tenancy, whether caught by the deemed-delivered provisions of the common law postal rule.

Facts

Mr and Mrs Johnson, beneficial joint tenants, were divorcing. Mrs Johnson was terminally ill. Mrs. sent Mr. a letter by ordinary first-class post stating her intention to sever her interest. It was delivered, but before seeing it Mr. suffered a heart attack. Mrs. realised she was likely to outlive him, survivorship would then operate passing the property to her completely, so she destroyed the letter. He died a few weeks later and she died a few months later.
His executors, consulting with the beneficiaries, chose to sue her executors to decide whether the notice severed the form of ownership. If not, the Will could have no effect on the death estate; the property would become hers absolutely, subject to any dependency of his or clear unreasonableness.
The law was unclear.

Judgment

Neuberger J held that the notice was effective. He did not take counsel’s argument for her estate that because Mrs. no longer, at that time, ‘desires to sever the joint tenancy’, the statutory precondition for valid notice was not there under section 36. This, he held, was wrong because the function of section 36 was not to bring the court to enquire into the parties’ state of mind. He said:

Obiter dictum

But, explained Neuberger J, it would probably be otherwise if a withdrawal was communicated before a notice was given, applying Holwell Securities Ltd v Hughes. This was just, however, ‘no more than a tentative view' — an obiter dictum.

Cases considered

;Binding precedents