A will can only work properly if it is drafted against the correct legal facts. That includes understanding what the client owns and how it is owned. For that reason, obtaining official copies of the HM Land Registry title register for any property a client owns is a sensible and important part of careful will drafting. Land Registry title documents for wills are not about unnecessary due diligence; they are about ensuring that the will reflects the reality of the client’s property ownership.
A title register does not answer every question in every case, but it is often the best starting point for confirming ownership, identifying restrictions, and spotting issues that can affect how the estate can pass on death.
This article explains why title documents matter, even in the simplest cases, and includes real examples of situations where a title check has avoided incorrect assumptions and improved the advice given.
Why Land Registry title documents for wills matter in practice
They show how jointly owned property is held
One of the most important reasons for obtaining title documents is to confirm whether co‑owned property will pass:
- automatically by survivorship; or
- under the will as part of the estate.
Where property is held as joint tenants, the deceased’s interest will usually pass automatically to the surviving owner. It does not pass under the will, even if the will says otherwise.
Where property is held as tenants in common, the deceased’s share forms part of the estate and can be gifted by will.
The title register may include a restriction suggesting the property is held as tenants in common (most commonly a Form A restriction). This can be critical. Without checking the register, there is a risk of drafting a will that attempts to deal with a property interest that the current ownership structure does not allow.
Depending on the client’s wishes, there may also be a need to sever a joint tenancy so the property is held as tenants in common.
In practice, it is very common for clients to be mistaken about how they own property. Couples may believe they own as joint tenants when they are actually tenants in common (or vice versa). It is also not unusual for a property they assume is jointly owned to be registered in one sole name.
Whilst the Land Registry title is a record of legal ownership and beneficial ownership may differ, Land Registry title documents for wills remain the most reliable starting point for identifying potential ownership issues.
They reveal mortgages, charges, and other registered interests
The charges register may show, for example:
- a legal charge or mortgage; or
- notices and restrictions in favour of third parties.
From a will drafting perspective, this is useful because it helps clarify whether the property is likely to pass subject to secured borrowing or other obligations.
Where a will includes a specific gift of property, the drafter should consider whether the client intends the gift to pass subject to the mortgage, or whether the residuary estate is expected to discharge liabilities.
They help distinguish between freehold and leasehold property
Leasehold property often requires closer attention in estate planning. The title may confirm:
- that the property is leasehold;
- the date and length of the lease; and
- the parties to the lease.
This can matter in practice because a short lease may affect value, marketability, or the client’s interest.
They reduce the risk of ambiguity and disputes
A well‑drafted will should identify assets clearly enough for executors to administer the estate with confidence. Title documents help ensure that a specific gift of property is described accurately.
This is particularly important where there are multiple titles connected to what the client thinks of as “the property”, for example:
- the main title (freehold and/or leasehold);
- adjoining plots of land; or
- garages, parking spaces, or similar.
Ensuring the gift is clear about what is, and is not, included reduces the scope for misunderstanding and disputes later.
They can uncover wider estate planning issues
A title review can also reveal matters that go beyond the wording of the will. For example:
- the property may be held unequally in equity despite the legal title;
- there may be a trust arrangement in the background; or
- the property may be unregistered, requiring further investigation.
Case examples
Example 1
A client had recently divorced. The divorce was finalised, and the financial arrangements had been dealt with informally. The client advised that he now owned the property in his sole name.
An official copy of the title showed the property was still registered in the joint names of the client and his former spouse as joint tenants. This meant that a severance was required to achieve his wish of leaving his estate to his children.
Example 2
A client stated they owned a property in their sole name. Based on the value of the estate, an inheritance tax charge was likely on death but would be reduced by the availability of the Residence Nil Rate Band (RNRB).
A title check suggested the property had in fact been transferred into trust during the client’s lifetime and was no longer held in the client’s own name. After further enquiries, the client produced a copy of the trust deed.
This raised a significant inheritance tax issue, as the way the property was held meant that it would not qualify for the Residence Nil Rate Band on the client’s death.
Example 3
A widow advised that following her husband’s death she had inherited his share of the family home and that it was now owned by her solely. She could not locate a copy of her late husband’s will. She wished to divide her estate between her children and stepchildren.
The title showed the property was not registered in her sole name, but in the names of the widow and two others. That led to a review of her late husband’s will (obtained via public records), which revealed he had not left his share to her absolutely. Instead, his will created a life interest trust, allowing her to benefit during her lifetime, with capital passing on her death to his children.
This was important because she could not deal with the trust share in her own will. It led her to reconsider the balance of her estate so that a greater proportion of her personal assets would pass to her own children, reflecting the separate provision already being made for her stepchildren under her husband’s will trust.
Example 4
A client had purchased her home under the Right to Buy scheme five years before making her will. She believed she owned the property outright, subject to a mortgage.
The title revealed the property was registered in the joint names of the client and her son. Further enquiries established that the son had been added to assist with the mortgage application.
Severance was required to ensure the client could leave her share of the property under the terms of her will.
Example 5
A client owned a portfolio of investment properties and wished to leave particular properties to each of four children.
Official copies of the titles showed that the registered proprietor was not the client personally, but a limited company. The client owned shares in that company, but did not own the properties in their own name.
That distinction was critical. The client could not make specific gifts of the individual properties by will while they remained company assets. Instead, the client could only dispose of their shares in the company. Identifying this at drafting stage led to a review of the client’s wishes and how those wishes could be achieved within the existing ownership structure.
Conclusion
In most cases, a property may be held in the way the client believes it is. However, there will always be exceptions. Land Registry title documents for wills are therefore a practical safeguard and an important part of careful will drafting.
In a field where small details can have significant consequences, a will can only work properly if it is drafted against the correct facts.
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