IHTM15040 - The extent of the share (England, Wales and Northern Ireland): practice where there is no documentary evidence of an express trust

The guidance on this page does not apply to joint accounts (IHTM15042) or land (IHTM15044).

Where an asset other than land is concerned, there is rarely any documentary evidence of an express trust.

When investigating joint property you should in the first instance regard the deceased as having been beneficially entitled to an interest in a joint tenancy (IHTM15082) if:

• the property passed on their death beneficially by survivorship (IHTM15081) to the other joint owners,
• the deceased could have severed the joint tenancy (IHTM15082) (which you should normally assume), and
• the deceased’s share in the property is in the same proportion to their actual enjoyment of the income from the property. If it is not in the same proportion you should consider whether an oral trust (IHTM15045) exists.

If these conditions are not satisfied you need to establish what was intended when the joint ownership began (IHTM15041). You need to obtain evidence to show the intentions of the joint owners. Evidence can be:

• documents from the time when the ownership began,
• later documents which throw light on the earlier intentions,
• statements from the surviving owners,
• statements from other people who knew what happened (but you must consider the issue of confidentiality very carefully when obtaining this sort of evidence).
• evidence from the conduct of the joint owners at the time the ownership began.

Establishing the intentions of the beneficial owners where there is no document can be a complex matter. So you should consider referring the matter to your Manager at an early stage if you wish to challenge the beneficial share included in an IHT400 (IHTM10021).