The decision of Young J in Wade v Harding that full valuable consideration is given for the omission to sever a joint tenancy because what was foregone in not severing was received by continuing to be a joint tenant is disapproved. Full valuable consideration under s 22(1)(b) of the Family Provision Act 1982 (NSW) must be assessed immediately before death and must be 'given' through a positive act by a third party, not merely the passive continuation of existing rights. A joint tenant who dies without severing the joint tenancy has entered into a prescribed transaction for the purposes of notional estate provisions. Separately, a constructive trust may be imposed over property held as joint tenants where the totality of changed circumstances — including parties not living in the property, birth of children, and financial contributions by a party not on title — amounts to a breakdown of the joint endeavour and it would be unconscionable for the surviving joint tenants to insist on their strict legal rights.
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