Where an express declaration of trust does set out the beneficial interests, orthodoxy suggests this would rule out them being affected by an "ambulatory" or other constructive trust. In a case where the legal estate in property is conveyed to two or more persons as joint tenants, but neither the conveyance nor any other written document contains any express declaration of trust concerning the beneficial interests No one now doubts that This dictum is surprising in making no mention of a constructive trust, particularly since a few paragraphs later she reminded herself of the requirements of section 53 1 b and the provisions of section 53 2.
More recently, in Clarke v Meadus [], which involved an express declaration of trust which one party sought to displace by virtue of a proprietary estoppel or constructive trust, Warren J referred to "the question whether a constructive trust might have arisen after [the date of the express declaration] to displace the express trusts declared".
Allowing the claimant's appeal against the Master's strike-out of her claim, he ruled that para [42] "nothing in Stack v Dowden or Goodman v Gallant can be read as suggesting that this is not possible: it all depends on the facts". It cannot Conclusion: until a sufficiently senior court rules on the point, there seems to be some doubt as to whether an express declaration of trust remains conclusive, in the absence of rescission or rectification.
If that doubt was well-founded, the purpose of declaring the beneficial interests in the transfer would be seriously undermined. First, a written variation complying with section 53 1 b or c would doubtless be effective. Secondly, claimants may be able to 'run' a case based on variation by a constructive trust or proprietary estoppel, although this point is ripe for further consideration.
Thirdly, if a variation may be based on a common intention constructive trust, it seems to follow from Jones v Kernott that the court may infer an informal variation or possibly impute one to the parties.
Fourthly, it is unclear how the court would resolve the tension between informally varied beneficial interests and the requirements of section 53 1 , in circumstances where no constructive trust or proprietary estoppel arose. Actual, inferred or imputed intention. Where the parties shared an actual, communicated common intention as to the amounts of their shares, this will be determinative save, it is suggested, for vitiating factors such as fraud, duress or undue influence.
In the absence of such, the court will take a pro-active approach to inferring common intention, as demonstrated vividly in Jones v Kernott. This calculation ignores the mortgage as in [it] was almost fully covered by the endowment policy which was always meant to discharge it. Para [48] makes it clear that the majority reached their decision on quantum by inference. It seems clear that the parties did not actually hold this common intention — rather, their common intention was held to be such by a process of objective deduction.
Interestingly, the majority took into account a wide range of factors to draw an inference. Yet it made use of a relatively precise calculation in order to assess the present value of Mr Kernott's interest, although there was no direct evidence of the parties' intentions.
So it provides an interesting example of a case where the court did not take a broad brush to the valuation of the interest. It will be very interesting to see how case law develops. However, in Oxley v Hiscock [] the trial judge's division was altered to on the basis that it would not be fair if the man's larger capital contribution to the purchase were ignored.
In Stack , was replaced by — primarily it is submitted by reason of disparate capital contributions. And in Kernott the Supreme Court gave detailed consideration to the parties' capital and financial arrangements at the material times. Somewhat counter-intuitively, then, given the courts' insistence on considering all the factors, the recent, leading cohabitants' cases Oxley v Hiscock, Stack v Dowden and Jones v Kernott saw outcomes which were clearly related to the parties' financial arrangements.
This will not be allowed to become a straitjacket, however — as Fowler v Barron demonstrates. It is clear from Jones v Kernott that the approach to quantifying shares will be the same in joint and sole name cases — although the factor that the parties made a conscious decision to put the property in joint names will almost inevitably carry significant weight.
Where the court is unable to draw an inference on the evidence, it will apply the criterion of fairness. Whether this is conceptualised as based on an imputed common intention or a freestanding criterion independent of intention may make little difference in practice. I do not consider Jones v Kernott will have any significant affect on express common intention constructive trusts, which depend on evidence of express discussions no matter how imprecise their terms or how imperfectly remembered demonstrating an arrangement, agreement or understanding to share the property beneficially.
It is well established that the court will assess the intention demonstrated by the discussions objectively e. Eves v Eves [], Grant v Edwards []. Perhaps the single most important issue thrown up by Kernott is: will its reinvigorated exercise of inference apply to the inference of a common intention to share beneficially?
The inferred common intention was authoritatively described by Lord Bridge giving the unanimous judgment of the House of Lords in the seminal case of Lloyds Bank v Rosset [] GA. In this situation direct contributions to the purchase price by the partner who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust.
But as I read the authorities, it is at least extremely doubtful whether anything less will do. Although in Stack it was said to be arguable that Lord Bridge had set the hurdle too high, Rosset was not departed from — and since Stack the domestic courts' approach in sole name cases has tended to reflect orthodoxy James v Thomas [] being a striking example of the court declining to infer an intention to share beneficially.
Post -Jones v Kernott , if inference is the exercise of objective deduction from all the evidence, will its scope of inquiry continue to be limited, at the first stage of inquiry in sole name cases, to the provision of direct financial contribution to the property's acquisition? A proprietary estoppel of the same value also arose on the facts. By contrast, Lords Kerr and Wilson concluded that it was in fact "…impossible to infer that the parties intended that their shares in the property be apportioned as the judge considered they should be but that such an intention should be imputed to them" Lord Kerr, para [77].
Facts Leonard Kernott and Patricia Jones met in and formed a relationship. The conveyance did not contain a declaration of trust and neither party sought or was offered advice as to the implications of buying a property jointly. The parties and their two children born in and lived at the property as their family home from until their separation in when Mr Kernott vacated the property. At that time, a joint insurance policy was surrendered and the proceeds divided equally, enabling Mr Kernott to put down a deposit on a new property in his sole name.
Having left, Mr Kernott made no further financial contribution to the household and bought his own home. Ms Jones took responsibility for the mortgage, the endowment policy premiums, all of the household bills and supported the children with little or no financial support from her former partner. In May , more than twelve years after their separation, Mr Kernott sought to realise his half share of the bungalow, which remained in the parties' joint ownership and in March he purported to sever the joint tenancy.
More info. Mental Capacity. Mental Capacity: Law and Practice. Evidence in Family Proceedings. View All. A day in the life Of Andrew Commins.
The Cohabitation Conference. View product. What is your actual point? Do you have one? I have been poking you with a stick to try to find out what it is you are actually trying to say. That is great. We are pleased if people find our material helpful or of use, be they students, practitioners, whoever. Does this not strike you as a rather odd demand? Yet somehow, the demands of students to have their questions answered and essays written for them are so important that we must make more time to deal with them?
But it is clear I will have to remain bewildered. As that is neither entertaining or interesting, this topic ends here. Any more comments not on Kernott v Jones will be deleted. Plus I am starting to feel like I am kicking kittens. Re: the presumption of equal shares being rebutted if it can be shown that the parties had a different common intention at the time of purchase or if their intention subsequently changed.
But can the court IMPUTE a change of intention out of fairness, such that it rebutts the presumption of equal beneficial ownership? PS For the record, I am also a student, currently battling with a piece of coursework on this very subject. Can we please get back to some intelligent discussion of the case s?
The earlier posts above are really helpful, interesting and are deepening my understanding of what seems to be a complex area of law. Blackburn Uni et al — you are a disgrace. Read the relevant chapters. Go and get the authorities. Read them. Sometimes you have to read the same page ten times before it sinks in. It will no doubt come up in future cases.
It is difficult, as without at least the fig leaf of inferred changed intention, the Court is quite simply imposing its view of a fair division where there is no evidence even by inference that the parties intended to vary any presumption of equal shares or whatever a previous express share was. It may be a step too far. The penultimate comment was indeed the most interesting one and perhaps articulately in a slightly more meticulous manner can be expressed as follows:. Presuming that we satisfy 1 The Inference of an intention rebutting equity following the law we then move to 2 inferring what share is necessary.
I wonder what practitioners think of this and where the law stands I am also a law student. Oxley V Hiscock and other extra-judicial commentary emphasize the applicability of Estoppel in Constructive Trust scenarios , how do people think an estoppel would apply to the facts of this case? I know Estoppel was given a cursory treatment in Stack but dont people think it should be awarded slightly more attention? God help Law Students studying at Blackburn Uni….
NL — your attitude is appalling! Would it be so difficult to show a bit of respect to students asking questions, even if only to say politely that you are unwilling to answer? Ben, so far no-one has been able to explain to me why should I show respect to students whose admitted purpose was to get us to write their essays for them. Apparently you are also of the school of thought that the lazy gits deserve respect, fluffiness and cuddles. And my attitude is appalling?
Oh dear, oh dearie me. I am devastated. And then the polite and respectful little blighters tried, albeit incompetently, to give me grief for it. As indeed, albeit incompetently, do you. Going back to the top of the comments page regarding the part in Goodman v Gallant on agreeing in advance to vary the interests in a joint tenancy — is this still good law? At para. They had two sisters but there was no written severance.
The first died in and second in It would be useful to show that they had impliedly severed the joint tenancy or could be imputed to have done so. Surely require evidence of express or inferrable intention — and that is going to be extremely difficult practically in your scenario. In addition, the requirement for severance of a joint tenancy other than by notice, are governed by a whole body of case law dating back to the categories set out in Williams v Hensman — I think, in practice a Court is likely to start there rather than by applying imputation.
I think that is right. On the point of severance based on conduct there is the case of Davis v. Smith [] EWCA Civ where, pursuant to Williams v Hensman, the Court of Appeal held that it is possible to infer a severance from conduct — in this case the parties were in the process of dividing their assets to reach a divorce settlement but due to the unforeseen death of one party never got round to serving the notice.
The totally of evidence allowed the court to construe that the parties had severed their joint tenancy by conduct. Here is another — Yes it is. Hope that was of use. They kept their finances stricly separate and there was also evidence that he received mail at a different address.
Perhaps in view of these different facts, particularly the rigidly separate finances, the logic does not appear to be so skewed? It would be nice if you could add more points to my question. Thanks a lot.. As editor of the site, can I be absolutely clear — this is not a place for you to try to get other people to write your essay for you. That should be very evdient from all the comments above. Good luck. This Article started out really well!!
It actually puts me off being a lawyer. Ive been a hard worker since 14 I am now 19 and I am two years through a law degree and have a scholarship.
And I went to state school. This means nothing to you however if you refer to the top it explains how the whole cohabiting couples mess has come about as judges do not have any experience ofcreal life!!
Private school, being rich and knowing the right people is all you need to get a job as a lawyer. Then look how you act pathetically arguing with students and ruining a perfectly good website. I think you need to stop thinking your better than everyone else just because your a lawyer.
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