Hi Sofeeya,

If I understand your enquiry, if you buy a house together in joint names as JOINT TENANTS, and one of you passes away, then the survivor receives the whole of the house. This is irrespective of what is in either person’s will as the survivorship rules means that he asset in questions does not form part of the estate and the will does not have any effect.

In this case your respective children would not receive their share of your house (unless the survivor chose to leave it to them in their will at their discretion). You could overcome this issue by purchasing the property as TENANTS-IN-COMMON and each tenant/owner could bequeath his/her respective share in the property to his/her respective children. However, this would then mean that a co-owner would then need to contend and confer with the respective step-children which may be problematic. It may not also properly protect the rights and security of the surviving spouse to live in the property unless a life estate or right to reside is protected, and in many circumstances, this may not be adequate or sufficient provision for that spouse depending on that spouse’s needs or own assets.

A binding will contract can resolve many of your concerns.

This is how they can work:
1. Each person writes a new will leaving their estate to their children except for the [say] 50% of the house in joint names which is left to the other party’s children.
2. The 2 new wills are bound together by a contract which basically states that both parties agree that they will not write a new will without the written consent of the other party.
3. If one person dies, then the surviving person may reside in the house for as long as they wish (provided they maintain the insurances and pay the rates etc).
4. If the person choose to move out (say to a retirement village) then the house is to be sold and the proceeds divided between the survivor and the children of the deceased person (and that 50% is subject to the deceased person’s will).

Kind regards,