Context is everything when defining the common intention constructive trust. Aidan Casey QC and Tom Poole discuss recent case law Marr has changed the way courts should approach disputes about the beneficial ownership of family-owned investment property portfolios. It has been recognised since the decisions of the House of Lords in Pettitt v Pettitt [1970] …
Continue reading "Beneficial ownership: Marring the deal"
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Mark Pawlowski looks at how the courts calculate the parties’ beneficial shares when events post-acquisition give rise to a claim to an enlarged share in the jointly owned family home ‘The courts take a holistic approach to the question of the assessment of the parties’ respective shares, so that, although financial contributions play an important …
Continue reading "TOLATA 1996: A holistic approach"
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Lehna Gardiner and Greg Williams consider equitable accounting and in particular the circumstances in which an occupation rent may be payable and how it will be calculated ‘Where one party is excluded from the enjoyment of the property, it is likely that a claim to an occupation rent will arise in principle.’ Socrates is reputed …
Continue reading "TOLATA 1996: Making allowances"
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Mark Pawlowski highlights some far-reaching implications arising out of the case law on beneficial ownership ‘The size of the parties’ respective shares upon acquisition will be determined according to the terms of their express trust regardless of their actual contributions to the purchase of the property.’ Let us begin with the following example. Suppose Mr …
Continue reading "Cohabitation: Fair shares in the family home?"
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Mark Pawlowski examines recent case law on resulting trusts, the presumption of advancement and joint borrowing under a mortgage ‘The court reiterated the view, expressed in Gorman, that prima facie, if the purchase is financed in whole or in part on mortgage, the person who undertook liability for the mortgage repayments, as between joint owners, …
Continue reading "Trusts: Who owns what?"
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Naveed Ali outlines the development of the constructive trust principle to aid cohabitees ‘The court should establish the intentions of the parties with evidence; where intention cannot be inferred, the court may impute an intention which the parties may never have founded.’ The regulation of proprietary rights after a breakdown of marriage is extensive: the …
Continue reading "Constructive trusts: Keeping up with the Jones"
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Peter Shaw QC explores the principles of ascertainment of beneficial ownership in a property purchase tainted with illegality ‘Having found that Mr and Mrs Kliers were the true beneficial owners, it would perpetuate the fraud to leave the property in Mr Schmerler’s ownership (without making a declaration of beneficial ownership). The illegal activities were required …
Continue reading "Beneficial ownership: Honesty is the best policy"
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Joss Knight examines a claim for a common intention constructive trust where a cohabitee has passed away ‘The administrators found themselves defending proceedings on behalf of the estate and attempting to deny the existence of a conversation to which they were not, on anyone’s case, a party.’ Claims for a declaration that property is held …
Continue reading "Constructive trusts: Gone, but not forgotten"
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Antonia Barker analyses the approach to joint accounts and the significance of a declaration as to the beneficial ownership of such an account ‘Where there is a joint account, there is a single contractual relationship between the holders and the bank’. In Whitlock v Moree [2017] the Privy Council, on appeal from the Court of …
Continue reading "Joint bank accounts: Shared intentions"
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Wills & Trusts Law Reports | Spring 2018 #171The claimant claimed a beneficial interest in a residential property registered in the joint names of the first and second defendants, his sister and brother-in-law respectively, on the basis that in 1959 he paid £600 towards the purchase price. By the time the matter came to trial in October 2015 both first and second defendants had lost capacity.
Giving judgment at first instance, HHJ Faber found both claimant and defendant witnesses to be unreliable. She concluded that on the evidence available she could not arrive at any finding as to who had made the £600 downpayment in 1959,...
