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Trust disputes—table of cases

Trust disputes—table of cases Existence and validity of trusts Topic Case name Summary Author Jurisdiction Existence and validity of trusts Provincial Equity Finance Ltd v Dines (née Breda) [2023] EWHC 103 (Ch) News Analysis: ‘By prosperous voyages I often made…And the great care of goods at random left’—resulting trust and the dominion of express trusts (Provincial Equity Finance Ltd v Dines and a Tragedy of Errors)This case demonstrates the practical difficulty of establishing a claim for resulting trust where a chaotic deceased used bank accounts for mixed purposes and establishes that an express trust may supplant the presumption of resulting trust even where the party advancing funds is not a party to the express trust. Nicholas Holland, McDermott Will & Emery UK LLP England & Wales Existence and validity of trusts Attorney General v Zedra Fiduciary Services (UK) Ltd and others [2022] EWHC 102 (Ch) News Analysis: Cy près scheme approved for £600m charitable trust to be applied to reduce the National Debt (Attorney General v Zedra Fiduciary Services (UK)...

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Severance of a joint tenancy

Severance is the process by which a joint tenancy is converted into a tenancy in common. It is a matter of evidence whether severance has occurred.There are limitations:•there can be no severance by will•only a beneficial/equitable interest can be severed—a legal estate must be held by way of joint tenancy (see section 36(2) of the Law of Property Act 1925 (LPA 1925) and Practice Note: Establishing a beneficial interest (joint ownership)).The consent of the other joint tenants is not required for an individual co-owner to sever a joint tenancy. Any joint tenant can sever the tenancy at any time.Severance by statutory notice It is usual to consider whether a joint tenancy should be severed when advising on relationship breakdown. Severance may be effected by statutory written notice under LPA 1925, s 36(2). This is the method most commonly used. The notice need not be in any particular form; it need not even use the term severance provided that it shows an immediate intention to terminate the joint tenancy. In Quigley...

Agricultural tenancies—rights of succession

Statutory rights of succession in relation to an agricultural tenancy only exist if the Agricultural Holdings Act 1986 (AHA 1986) applies to that tenancy. There are no succession rights in relation to farm business tenancies (ie tenancies granted under the Agricultural Tenancies Act 1995 (ATA 1995)). In substance, this means that:•where a tenancy granted before 12 July 1984 is one to which the AHA 1986 applies, the tenant automatically enjoys statutory rights of succession•where a tenancy granted on or after 12 July 1984 and before 1 September 1995 is one to which the AHA 1986 applies, the tenant enjoys those rights only if any of the circumstances described in AHA 1986, s 34(1)(b) applies (the most common of which is that the parties have expressly included those rights in the tenancy agreement)•where a tenancy granted after 1 September 1995 is a ‘succession tenancy’ (ie it is a tenancy granted pursuant to a right of succession contained in an earlier tenancy agreement to which the AHA 1986 applies), it will remain...

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Declaration of express trust for sale by joint tenants to sever the joint tenancy in equity

Declaration of express trust for sale by joint tenants to sever the joint tenancy in equity Date [date] Parties 1 [name of first joint tenant] of [address] 2 [name of second joint tenant] of [address] 3 [name of third joint tenant] of [address] (together referred to as Joint Tenants) background (A) By [a [conveyance OR transfer] dated [date] made between (1) [names of sellers/transferors] and (2) the Joint Tenants OR a settlement dated [date] made between [parties] OR an assent dated [date] made between [name(s) of personal representative(s)]] and the Joint Tenants [and in the events which have happened] the property described in the Schedule (Property) is vested in the Joint Tenants in fee simple as beneficial joint tenants. (B) [The rents and profits of the Property have up to the date of this Deed been collected paid and applied in accordance with the directions and to the satisfaction of the Joint Tenants.] (C) The Joint Tenants wish to sever the joint tenancy...

Declaration of simple trust of land on severance of joint tenancy of property subject to a mortgage

Declaration of simple trust of land on severance of joint tenancy of property subject to a mortgage Date [date] Parties 1 [name of first joint tenant] of [address] 2 [name of second joint tenant] of [address] (together referred to as Joint Tenants) background (A) By a [conveyance OR transfer] dated [date] made between (1) [name(s) of seller(s)] and (2) the Joint Tenants, the property described in the Schedule (Property) was [conveyed OR transferred] to the Joint Tenants in fee simple as beneficial joint tenants. (B) By a mortgage (Mortgage) dated [date] made between (1) the Joint Tenants and (2) [name of lender] (Lender), the Property was charged to the Lender to secure payment to the Lender of the sums specified in the Mortgage. (C) The Joint Tenants have agreed that, as from the date of this Deed, the joint tenancy is severed and the Property, subject to the Mortgage, is held by them as tenants in common in equal shares, on the further terms...

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Can a unilateral notice be registered against a property owned by a party to financial remedy proceedings where that property is co-owned by a third party?

Can a unilateral notice be registered against a property owned by a party to financial remedy proceedings where that property is co-owned by a third party? Section 30 of the Family Law Act 1996 (FLA 1996) provides that where one spouse (or civil partner) has the right to occupy a dwelling house, the other spouse is entitled to register home rights, provided that the property has been the matrimonial home. Those home rights may be protected, in the case of a property held in the sole name of one spouse only, by way of a notice being registered with the Land Registry. If the title to the property is registered, then the application for the home rights notice should be made using Form HR1—Application for registration of a notice of home rights. If the property is unregistered, an application may be made to the Land Charges Department for the registration of a Class F land charge. A spouse may only protect their interest in one property at...

Does a deputy appointed by the Court of Protection have the right to serve a notice severing a joint tenancy on behalf of the person lacking capacity?

Does a deputy appointed by the Court of Protection have the right to serve a notice severing a joint tenancy on behalf of the person lacking capacity? Severing a joint tenancy Section 36(2) of the Law of Property Act 1925 (LPA 1925) allows one joint owner to serve a written notice on the other joint owners, severing their joint tenancy in equity. Further information on the methods by which a joint tenancy can be severed can be found in the Lexis®PSL Property Practice Note: Severance of a joint tenancy. Deputies’ powers It will be necessary to start by looking at the deputyship order to see the scope of the deputy’s powers. See Practice Note: The deputyship order, which sets out: ‘Since the introduction of the Mental Capacity Act 2005 (MCA 2005), deputyship orders are in most cases widely drafted and, subject to any specific restrictions in the order itself or imposed by the MCA 2005, leave the deputy free to work within the framework of the MCA 2005,...

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Is the interest passing to the survivor of joint tenants charged with payment of a mortgage over the property? (Audrey Flowers v Bria Scavella)

Private Client analysis: Section 35 Administration of Estates Act 1925 (AEA 1925) provides that where property is charged with the payment of money then, subject to any contrary intention, the deceased’s interest is primarily liable for payment of the charge, so payment of the debt does not fall upon the residue of the estate. What, though, if the property charged is held as joint tenants? Does AEA 1925, section 35 operate to place the obligation to discharge the charge on the survivor? In Audrey Flowers v Bria Scavella the Privy Council decided, with reference to an essentially identical provision in the Bahamas, that AEA 1925, s 35 does not apply. The consequence is that the liability will fall on the residue, subject to any agreement or other obligation as between the two joint tenants. Written by Richard Dew, Barrister at Ten Old Square.

Question of the week: A property is held as tenants in common by A and B. B holds capacity but wishes for A to act for them under a lasting power of attorney whereby A is the sole appointed attorney. If a second trustee is appointed, is this an acceptable form of disposition and a valid receipt clause to overreach the form A restriction?

This Q&A considers whether, in circumstances where a property is held as tenants in common by A and B, and B holds capacity but wishes for A to act for them under a property and financial affairs lasting power of attorney whereby A is the sole appointed attorney, the appointment of a second trustee would be an acceptable form of disposition and a valid receipt clause to overreach the form A restriction.