Trusts: A fair result?

Mark Pawlowski examines the presumption of a resulting trust where assets are owned by a company ‘Where the funds for purchasing the assets come from the company controller, the likely approach (absent any contrary intention) is to apply resulting-trust theory so as to treat them as beneficial owner.’In what circumstances is it open to a …
This post is only available to members.

Cohabitants: Home truths

Mark Pawlowski summarises how a non-owning cohabitant can obtain capital provision under the Children Act 1989 ‘The practical effect of a settlement/transfer order made under Sch 1 is that, during the period of the children’s education, the house is held on trust for the non-owning party to the exclusion of the other party for the …
This post is only available to members.

Beneficial Ownership: Behind the veil

James Brown and Mark Pawlowski consider the possibility of disclosing beneficial interests on the land register ‘The proposal to introduce a register of beneficial interests would need to coincide with a related amendment to the Land Registration Act 2002.’ Property lawyers will be familiar with the so-called ‘curtain principle’ under which beneficial interests are kept …
This post is only available to members.

Constructive Trust Claims: Excuses, detriment and imputation

Don McCue examines the lessons from Curran v Collins [2015] ‘Two issues currently need to be resolved as a matter of some urgency… First, in no-agreement cases, whether the Rosset threshold requirement should be relaxed. Second, the question of inference or imputation needs clarification.’ Claims on constructive trust principles to a share of the beneficial …
This post is only available to members.

Beneficial Interests: Defeating creditors: a how (not) to guide

Rupert Higgins considers some cases highlighting the problems with hastily created declarations of trust ‘A guide to defeating creditors is long overdue. So here, too late for Mrs Rahman but for the benefit of readers, is a bluffers’ guide to bluffing.’As controversial political figures go, it would be hard to find a candidate in recent …
This post is only available to members.

Cohabitants: An unequal partnership?

Graeme Fraser and Stephen Morrall consider the treatment of joint investments in properties and businesses by a cohabiting couple ‘The courts treat properties used as family homes and investment properties differently and are much more inclined to find a common interest constructive trust in relation to a family home.’ The volatile stock market, high property …
This post is only available to members.

Curran v Collins [2015] EWCA Civ 404

Wills & Trusts Law Reports | March 2016 #157

This was an appeal against a decision that Ms Curran, the appellant, had not acquired a beneficial interest in property in the sole name of Mr Collins, the respondent. Mr Collins and Ms Curran were in a relationship from about 1978 until 2010. However, she did not move in to live with Mr Collins until 2002, having maintained a close relationship with her own family.

From about 1994 onwards, the couple bred Airedale terriers. Over the course of the relationship, Mr Collins owned three properties in his sole name, referred to as the Bendfont flat, the Feltham house and The Haven. He...

O’Kelly v Davies [2014] EWCA Civ 1606

Wills & Trusts Law Reports | March 2016 #157

This appeal concerned a dispute over the beneficial ownership of the property whose legal title was at all times held by the appellant alone. At trial, the judge made the following findings:

  1. (i) A former property had been purchased in the joint names of the respondent and appellant in 1987.
  2. (ii) In 1991 the legal estate in that property was transferred into the sole name of the appellant to allow her to claim benefits as though she was a single woman living alone. The outstanding mortgage on that property at the time was converted to an endowment secured by a policy...

Co-Ownership: Inference, imputation and child maintenance

Barnes v Phillips explores the circumstances in which the beneficial shares of unmarried co-owners should be varied, as Mark Simeon Jones explains ‘This evolution of the modern law has been marked by two significant milestones; first, the judgment of the House of Lords in Stack v Dowden, and second, the judgment of the Supreme Court …
This post is only available to members.

Barnes v Phillips [2015] EWCA Civ 1056

Wills & Trusts Law Reports | January/February 2016 #156

88 Leyland Road, London (property) was purchased by the parties in January 1996 for approximately £135,000 using approximately £25,000 from their savings for the deposit and taking out a joint repayment mortgage for the balance with HSBC. It was registered in their names as joint tenants. Both contributed to the cost of installing double glazing, resurfacing the driveway and landscaping the garden. The appellant, who had acquired other buy-to-let properties in his sole name, told the respondent in early 2005 that he wanted to remortgage the property because of debt problems. The property...