DEC-02 Survivorship Applications
Version 10 - 15/08/2022
This guide has undergone a full review and rewrite of content on 02/08/2022
This document is subject to the Verification of Identity Practice issued jointly by the Western Australian Registrar of Titles and Commissioner of Titles. Please refer to the VOI webpage.
1 On Death of a Joint Tenant
Where any person registered with another as a joint tenant dies, the surviving joint tenant(s) must apply to be registered as the surviving proprietor(s) on the Register.
Although the interest of a joint tenant ceases immediately on death and the surviving joint tenant’s interest is immediately enlarged, the legal estate does not change until the required application is made and the Register amended.
All the surviving joint tenants must join and sign the Application.
In support of a Survivorship Application the following must be produced:
- Evidence of death; and
- Duplicate Certificate of title (where applicable; and
- Statutory Declaration
Evidence of Death – usually the original death certificate issued by Births, Deaths and Marriages, sighted by Landgate, or certified by Australia Post, a licensed settlement agent or legal practitioner. An original grant of probate or letters of administration of the deceased issued by the Probate Office is also acceptable evidence.
Where evidence of death is issued in a foreign country, the original evidence must be issued and certified by the official authority that would be the equivalent of the Registry of Births, Deaths and Marriages in WA.
Where the evidence is printed in a foreign language, the original evidence (or certified copy that is certified by the issuing authority only) must be translated by a person who has a "NAATI" accreditation from the National Accreditation Authority for Translators and Interpreters and a translated version plus the original/certified version will need to be produced.
If providing the original evidence to Landgate, the original evidence will be copied and the copy will be noted as “Landgate sighted”. The original/certified evidence will be returned to the lodging party and the “Landgate sighted” copy and the official translated version of the evidence is then lodged with the document/s.
Duplicate Certificate of Title - The duplicate certificate of title to the land (where applicable), or third-party consent where no duplicate title has issued
Applicants should check the record of certificate of title for any encumbrances that may delay or prevent registration, such as mortgages, caveats and memorials.
Statutory Declaration - A statutory declaration form B3 by the surviving joint tenant(s) or his or her personal representative or by one or more of the surviving joint tenants if more than one. This declaration should:
- identify the declarant(s); and
- identify the land being dealt with by its volume and folio reference in all cases, and where a mortgage, charge or lease of land is being dealt with, the number of that instrument; and
- contain the statement:
- "I am (we are) registered as a joint tenant of the land, (lease, charge, mortgage) described above".
- identify the date of death as stated on the evidence of death
- identify the deceased joint tenant as being one and the same as the person shown on the certified copy of the death certificate (quoting the registration number of the death certificate), or other evidence of death produced. The full name and address of the deceased as shown on the Certificate of Title must be stated. A suitable clause may read “The person shown as (full name) of (address as shown on the Certificate of Title) on Certificate of Title Volume XXXX Folio XXX is one and the same as (deceased full name) described on the death certificate.” It is not necessary to amend the name of the deceased where there is a discrepancy between the evidence of death and certificate of title, however any differences in the name or address of the deceased or the surviving joint tenant(s) must be explained in the statutory declaration; and
- contain the statement “The joint tenancy with the deceased proprietor of the land and/or interest described above has not been severed at the date of death of the deceased proprietor”.
- Where the Application is being signed by the Applicants Attorney under a registered Enduring Power of Attorney (EPA), the declaration must make reference to the EPA.
- Where the Application is being signed by the Applicants Plenary Administrator under a SAT Order, the declaration must make reference to the Order and contain the appropriate non-revocation clauses as set out in CAP-02 Incapable Persons
NOTE: Where tenancy has been severed due to simultaneous death please see DEC-03 Transmission Application for more information
NOTE: Where tenancy has been severed by Court Order or Bankruptcy the Applicant should seek legal advice. For more information of severing of tenancy please see DOC-05 Tenancy.
Where a Survivorship Application is lodged in paper it can be presented for lodgement using a A2 Application (PDF) with a B3 Statutory declaration (PDF) or the Survivorship eForm.
The Survivorship eForm contains a generated statutory declaration based on the execution type selected by the Applicant. A supplementary statutory declaration is not required where the correct information is entered into the eForm along with the correct execution block.
1.2 Amend Name of Surviving Joint Tenant
An application to amend name may not be required where the surviving joint tenants name differs in any way from that shown on the Register (see Exceptions to lodging an application to amend name in NAM-01 Name Amendment). The surviving joint tenant can update their name by showing the ibn the applicant panel the following:
Jane Elizabeth Smith (formerly or incorrectly shown as Jane Elizabeth Smyth)
The operative wording of the survivorship application will need to be modified to request the title be amended to show the correct name of the surviving joint tenant (see Form Example 4).
1.3 Absolute Caveat
An Absolute caveat will bar the registration of this transaction type, with a few exceptions specified in section 142 of the Transfer of Land Act 1893. An Absolute caveat should be removed to enable the registration of a Survivorship. See CAV-05 Caveats – removal for removal options.
2 Who May Apply
The following persons may apply to be registered as proprietor by survivorship:
- all the surviving joint tenants
- the sole surviving joint tenant
- where all joint tenants are deceased the executor or administrator of the last surviving joint tenant on behalf of that joint tenant
- the surviving executor/administrator/trustee when registered as proprietor with a deceased co-executor/co-administrator/co-trustee
- the surviving joint tenant’s Plenary Administrator or Attorney
- the surviving joint tenant when registered as joint tenants with a corporation that has been liquidated
- a corporation when registered as joint tenant with a person who has died.
The survivorship application form for the third scenario set out above is completed as shown in Form Example 3. This form of survivorship must be followed by a transmission application of the estate of the last surviving joint tenant.
The Attorney of the surviving joint tenant may execute a survivorship application form on behalf of the donor of the power of attorney, and may (in the attorney’s name) provide the declaration in support. The declaration must include the means of knowledge for the statements made.
2.1 Death of Multiple Joint Tenants
Where more than one joint tenant has died, the surviving joint tenant(s) can make one application and list all of the deceased co-proprietors in the deceased proprietor panel.
3 Bars to Survivorship
Where joint tenants die in circumstances that give rise to reasonable doubt as to which of them survived the other the Property Law Act 1969, s.120, provides that the property shall devolve as if it were owned by them as tenants in common. Separate transmission applications are required for the interest of each deceased proprietor.
Where a caveat lodged against the land is lodged specifically to prevent the application for survivorship or indicates the existence of an unregistered but registrable transfer or an unregistered but registrable mortgage of the land, a survivorship application will not be accepted.
4 Lodgement via and Electronic Lodgement Network
An industry professional who is a Subscriber to an ELN, may lodge a Survivorship Application electronically.
Evidence to support the application, such as statutory declaration and evidence of death, are required to be obtained, uploaded and attached to the application prior to lodgement.
If a duplicate certificate of title exists, the Subscriber must certify that it has been retrieved and either destroyed or made invalid prior to the lodgement of the application. If the title is “non-issue”, and the property is mortgaged, the consent of the mortgagee must be uploaded and attached to the application.
Survivorship applications will continue to be accepted for lodgement in paper and do not require a Request to Accept Paper Lodgement coversheet
5 Death of a Joint Encumbrance Holder
Where an encumbrance holder of a Mortgage, Charge or Lease dies and where they hold the interest jointly, a Form Application by Survivor should be used.
The effect of the application is to remove the deceased encumbrance holder, leaving the surviving interest holder to hold the interest solely. The debt or interest can then be discharged or surrendered by the surviving interest holder, or as the case may be.
The evidence requirements are the same as survivorship application (Form Application by Survivor), being a statutory declaration and the office copy or the original Death Certificate (see above).
The production of the relevant duplicate certificate of title (if any) is not essential but it is desirable.
6 Death of a Joint Trustee
Where the land was held in trust by joint trustees, the surviving trustee will need to lodge a Survivorship Application prior to the Transfer of Land to the new or replacement trustee.
7 On Death of a Life Tenant
Where a Joint Life Tenant dies, the surviving Joint Life Tenant should complete an Application by Survivorship, see paragraph 1 of this Topic. Where a Life Tenant dies and the person holding the remainderman is seeking the removal of the deceased sole Life Tenant, refer to paragraph 5 in policy and procedure guide TFR-06 Life Estates.