Introduction and essential facts
- On 20 May 1996 Mr Thomas Brown and his wife Mrs Mary
Theresa Brown executed mutual wills in identical form. Each spouse left the
entirety of his or her estate to the survivor, and in the event of being the
survivor left to Mrs Brown's niece, the Claimant
"All my share and interest in my flat known as 3 Phoenix Court
Purchese Street London NW1 1EL and the proceeds thereof or any other such
dwelling as may be the main residence of myself and my [husband/wife] at the
time of my death (sic) together with all my personal chattels.
...."
and gave the remainder of the estate to Paul Brown, Mr Brown's son by an
earlier marriage and the First Defendant in this action.
- The Phoenix Court flat was the matrimonial home of
Mr and Mrs Brown, purchased by them jointly on long leasehold in 1993. It
remained their home until Mrs Brown's death in 1997 and thereafter continued
to be Mr Brown's home until his death in 1999.
- Each will contained at the outset a declaration
"that this be my last will ("my Will") and that I shall not
amend or revoke my will after the death of my husband [or wife] .. if it is
then unamended and unrevoked."
- On 10 January 1997 Mrs Brown died, having made no
alteration to her will. Mr Brown as the surviving joint owner became the sole
owner of the flat by operation of law.
- On 18 August 1997 Mr Brown transferred the flat from
his sole name into the joint names of himself and the First Defendant "in
consideration of natural love and affection".
- On 31 December 1999 Mr Brown died with no alteration
to his will, and sole title to the flat vested in the First Defendant by the
doctrine of survivorship.
- In essence, the case advanced by the Claimant is
that in executing their mutual wills Mr and Mrs Brown agreed that the survivor
would continue and not revoke the bequest of the flat to the Claimant (and the
residuary estate to the First Defendant); that the transfer of the flat by Mr
Brown into the joint names of himself and his son after the death of his wife
reneged on that agreement and constituted a fraud on Mrs Brown. In these
circumstances the Claimant contends that the flat is held by the First
Defendant on trust for the Claimant and that she is entitled to have the flat
transferred to her. That claim raises fundamental questions of law as to the
effect of mutual wills and the impact of section 2 of the Law Reform
(Miscellaneous Provisions) Act, 1989 ("the 1989 Act") as regards the bequest
of real property under such wills.
The law relating to mutual wills
- Any will, even when stated to be non-revocable, is
at law by its nature revocable by a testator, and even where the testator has
agreed contractually with another person not to revoke it, a subsequent will
in breach of any such agreement will nonetheless be admitted to probate: see
e.g. Re Heys, [1914] P 192. Equity can, however, where two
parties agree as to the disposal of property by will and execute wills
containing provisions to that end, intervene by imposing a constructive trust
in favour of the beneficiary under the original will. As Dixon J summarised
the position in Birmingham v Renfrew (1937) 57 CLR 666 at 683:
"It has long been established that a contract between persons to
make corresponding wills gives rise to equitable obligations when one acts
on the faith of such an agreement and dies leaving his will unrevoked so
that the other takes property under its dispositions. It operates to impose
upon the survivor an obligation regarded as specifically enforceable. It is
true that he cannot be compelled to make and leave unrevoked a testamentary
document and if he dies leaving a last will containing provisions
inconsistent with his agreement it is nevertheless valid as a testamentary
act. But the doctrines of equity attach the obligation to the property. The
effect is, I think, that the survivor becomes a constructive trustee and the
terms of the trust are those of the will which he undertook would be his
last will."
That analysis operates on the basis that each testator provides
consideration for the other's promise by making his or her will in the agreed
terms and maintaining it unaltered to the date of death.
- Though in the early and celebrated leading case of
Dufour v Pereira, (1769) 1 Dick. 419 and 2 Harg. Jurid.Arg 304
there was a single joint will, separate but mutual wills will suffice,
provided that it is clear from internal or extraneous evidence that they are
not simply coincident but together constitute or evidence an agreement
amounting to a contract that the survivor shall not revoke his or her will
after the death of the other: see Gray v Perpetual Trustee Co
Ltd [1928] AC 391; Re Dale [1994] Ch 31; Re
Goodchild [1997] 1 WLR 1216. In the present case, it is accepted by the First Defendant that the
wills of Mr and Mrs Brown executed on 20 May 1996 satisfy this test (subject
to the impact of section 2 of the 1989 Act which I discuss below).
- In the present case, however, the will was not
revoked by Mr Brown. The argument of the Claimant is rather that Mr Brown
anticipated and circumvented the operation of his unrevoked will by
transferring the flat into the joint names of himself and the First Defendant,
thereby passing an immediate undivided half-share and causing the remainder to
pass on his death to the First Defendant by the doctrine of survivorship. One
has therefore to examine whether that act was contrary to the terms of the
compact embedded in the mutual wills, and if so whether it gave rise to any
proprietary consequences.
- The first task must be to ascertain what (if any)
obligations and restrictions in relation to the relevant property are imposed
on a surviving testator who has executed a mutual will and undertaken not to
revoke it. The starting point must be the text of the wills and in particular
of the bequest clause identifying and disposing of the property to be left to
the claimant. In the present case, the matter is complicated by an error in
the drafting of the clause in question, the relevant parts of which for
convenience I set out again in the form in which it occurs in the will of Mr
Brown. It purported, in the event of Mr Brown surviving his wife, to give
absolutely to the Claimant
"all my share and interest in my flat known as 3 Phoenix Court
Purchese Street London NW1 1EL and the proceeds thereof or any other
such dwelling as may be the main residence of myself and my wife at the time
of my death ...."
The highlighted words are plainly illogical, since they are predicated on
Mrs Brown having predeceased the testator, in which case the dwelling could
not be the main residence of both spouses at Mr Brown's death. What is less
clear is what correction should be made in those words to reflect the
testator's intentions. Two possibilities were addressed in argument:
(A) To change the word "my" before "death" to "her, so that the clause
would apply to "any other such dwelling as may be the main residence of myself
and my wife at the time of her death".
(B) To delete the words "and my wife", so that the clause would cover "any
other such dwelling as may be the main residence of myself at the time of my
death". I prefer the first solution (A). It seems more likely that Mr and Mrs
Brown were concerned to determine the fate of the matrimonial home, then the
Phoenix Court flat, and included the second half of the clause simply to avoid
the need to re-execute their wills if they were to move residence during their
joint lives. This approach also involves a smaller verbal alteration in the
clause, namely the substitution of the word "her" for "my"; moreover solution
(B) assumes that the clause was intended to contain the phrase "the main
residence of myself", when normal English usage would more naturally speak of
"my main residence". (Counsel for the Defendants submitted that the same
result as (A) could be achieved without any alteration of the wording, by
treating the words "at my death" as qualifying the opening words "all my share
and interest" rather than the immediately preceding words "main residence of
myself and my wife"; but I found this route of interpretation highly
artificial.)
- In my view, therefore, the will contemplated that
the property subject to the bequest would be definitively identified at the
date of the death of the first spouse, namely as the Phoenix Court flat or any
other property which had in the meantime replaced it as their main residence -
as it turned out, the former. There is thus no conceptual obstacle to imposing
a restriction on dealings with the flat by the survivor, and the question is
rather whether and in what circumstances there is such a restriction, and the
proprietary consequences, if any.
- This subject was discussed by Dixon J. in
Birmingham v Renfrew (1937) 57 CLR 666 at 689-690 in a passage
quoted by Nourse J in Re Cleaver [1981] 1 WLR 939 at 946-7:
"The purpose of an arrangement for corresponding wills must
often be, as in this case, to enable the survivor during his life to deal as
absolute owner with the property passing under the will of the party first
dying. That is to say, the object of the transaction is to put the survivor
in a position to enjoy for his own benefit the full ownership so that, for
instance, he may convert it and expend the proceeds if he choose. But when
he dies he is to bequeath what is left in the manner agreed upon. It is only
by the special doctrines of equity that such a floating obligation,
suspended, so to speak, during the lifetime of the survivor can descend upon
the assets at his death and crystallise into a trust. No doubt gifts and
settlements, inter vivos, if calculated to defeat the intention of the
compact, could not be made by the survivor and his right of disposition,
inter vivos, is, therefore, not unqualified. But, substantially, the purpose
of the arrangement will often be to allow full enjoyment for the survivor's
own benefit and advantage upon condition that at his death the residue shall
pass as arranged ...
In re Oldham [1925] Ch. 75 Astbury J. pointed out,
dealing with the question whether an agreement should be inferred, that in
Dufour v. Pereira, 1 Dick. 419 the compact was that the survivor
should take a life estate only in the combined property. It was, therefore,
easy to fix the corpus with a trust as from the death of the survivor. But I
do not see any difficulty in modern equity in attaching to the assets a
constructive trust which allowed the survivor to enjoy the property subject
to a fiduciary duty which, so to speak, crystallised on his death and
disabled him only from voluntary dispositions inter vivos."
Though not developed by Dixon J, and perhaps unimportant on the facts of
the present case, it would seem that where the fiduciary duty is breached by
such a voluntary disposition inter vivos of the property in question, the
"crystallisation" of the floating obligation must occur at the moment of that
disposition.
- I would, in line with the observations of Dixon J,
have had little difficulty in concluding that a sale at arm's length or market
price by the survivor, Mr Brown, to permit personal enjoyment of the proceeds
was not precluded by the agreement of the parties. But "gifts and settlements,
inter vivos, if calculated to defeat the intention of the compact" would
plainly be in breach of it. Had Mr Brown sold the flat and used the proceeds
to fund a place in a nursing home, there would have been no basis for
complaint. But to give away the flat to his son - with immediate effect as to
a 50% undivided share, and with effect on death as to the remainder by
operation of the doctrine of survivorship - could scarcely run more directly
and fully counter to the intention of the mutual will compact that the flat
should pass to his deceased's wife niece on his own death.
- Subject therefore to the impact of the 1989 Act I
have no doubt that the mutual wills doctrine would apply in the present case
so as to impose in favour of the Claimant a constructive trust attaching to
the flat. I turn therefore to consider the provisions and effect of section 2
of the 1989 Act.
The impact of the 1989 Act
- Prior to 1989 the formalities required for a
contract for the sale or other disposition of land were governed by section
40(1) of the Law of Property Act, 1925, which provided:
"(1) No action may be brought upon any contract for the sale or
other disposition of land, or any interest in land, unless the agreement
upon which such action is brought, or some memorandum or note thereof, is in
writing, and signed by the party to be charged or by some other person
thereunto by him lawfully authorised. (2) This section applies to contracts
whether made before or after the commencement of this Act and does not
affect the law relating to part performance, or sales by the
court."
Section 40 of the 1925 Act largely repeated provisions in similar terms in
the Statute of Frauds 1677, while expressly preserving the equitable doctrine
of part performance permitting action on such a contract in certain
circumstances notwithstanding non-compliance with the statutory requirement
for a signed memorandum.
- Since 1989 the position has been regulated by
Section 2 of the Law of Property (Miscellaneous Provisions) Act, 1989, which
provides so far as relevant for present purposes:
"(1) A contract for the sale or other disposition of an interest
in land can only be made in writing and only by incorporating all the terms
which the parties have expressly agreed in one document or, where contracts
are exchanged, in each.
(2) The terms may be incorporated in a document either by being
set out in it or by reference to some other document.
(3) The document incorporating the terms or, where contracts are
exchanged, one of the documents incorporating them (but not necessarily the
same one) must be signed by or on behalf of each party to the
contract.
...
(5) ... nothing in this section affects the creation or
operation of resulting, implied or constructive trusts.
(6) In this section-
"disposition" has the same meaning as in the Law of Property
Act 1925;
"interest in land" means any estate, interest or charge in or
over land or in or over the proceeds of sale of
land.
...
(8) Section 40 of the Law of Property Act 1925 (which is
superseded by this section) shall cease to have effect."
- It will be noted that the changes effected by the
1989 Act are not restricted to the requirements of form which a contract for
the disposition of an interest in land must satisfy. More fundamentally,
section 2(1) deprives any non-compliant agreement of the legal status and
hence effect of a binding contract, where section 40 of the 1925 Act (and the
predecessor Statute of Frauds) had simply rendered such an agreement
unenforceable by legal action without negating the existence of a legal
contract.
- There can be no doubt, as a matter of both
principle and authority, that the agreement embodied in mutual non-revocable
wills containing a bequest of land is a contract for the disposition of land.
An undertaking not to revoke a testamentary disposition is the same in effect
as a promise to make that disposition. As was said by Lord Camden in
Dufour v Pereira: "There is no difference between promising to
make a will in such a form and making his will with a promise not to revoke
it" (1769) 2 Harg.Jurid.Arg. 304 at 309. In Horton v Jones,
(1935) 53 CLR 475 the High Court of Australia dismissed a claim by plaintiff
against the personal representatives of her ex-employer for breach of an oral
agreement by him to make a will leaving her property which would include
interests in land on the ground that it fell within the New South Wales
equivalent of section 40 of the English 1925 Act. Not long after, in
Birmingham v Renfrew (1937) 57 CLR 666, the same court held that
the equivalent statute in Victoria was in principle engaged in a case where
husband and wife made mutual wills. The statute was held inapplicable and the
claim succeeded only on the basis that the will (and therefore the promise)
referred simply to the entirety of the testator's estate on death, and
therefore it could not be said at the date of the agreement that it concerned
an interest in land, even if in the event at the time of death the estate
turned out to include such an interest. No such obstacle to the application of
the statute exists in the present case, where the bequest of the survivor is
explicitly of land. The further reference in the bequest clause in the present
case to the proceeds of a possible sale alters nothing in this regard: cf per
Rich and Dixon JJ in Horton v Jones (1935) 53 CLR 475 at 487.
- It is equally clear that the requirements of
section 2(1) of the 1989 Act are not fulfilled.
(A) If the mutual will compact falls to be regarded as one agreement, it is
clear that there is no single document signed by both parties. Counsel for the
Claimant argued that this objection could be overcome by resort to section
2(3), on the basis that the wills signed separately by the spouses had been
exchanged. But I find it impossible to construe that in handing their
respective wills to the same solicitor for safe-keeping Mr and Mrs Brown were
effecting an exchange. Moreover, even in the case where contracts are
exchanged section 2(1) requires all the terms to be set out or referred to in
each document, whereas each will ex hypothesi contained different, albeit
mirror-image terms.
(B) The better analysis may be that the mutual will compact consists of two
contracts: one by Mr Brown to leave the property to the prescribed beneficiary
if his wife died without revoking her will, and the other by Mrs Brown in
reverse terms. But even on this basis section 2(1) is not satisfied. Firstly,
under section 2(1) the document containing all the terms must have been signed
by both parties, and Mr Brown's will clearly was not. Secondly, Mr Brown's
will does not contain (or incorporate by reference) any terms as to the
consideration for his undertaking (and the precondition for its becoming
binding upon him), namely that his wife should have maintained her will
unrevoked to her death. It does not therefore incorporate all the terms (or
even all essential terms), as section 2(1) requires.
- It is therefore in my judgment clear that section
2(1) of the 1989 Act applies so as to deprive the mutual will compact of any
legal effect as a contract. The significance of this conclusion lies in the
fact that the mutual wills doctrine is anchored in contract, and presupposes a
legally binding agreement. In Dufour v Pereira, (1769) 1 Dick.
419 and 2 Harg.Jurid.Arg 304 Lord Camden LC considered the case "in two views"
("2 Harg.Jurid.Arg at 307):
"FIRST, how far the mutual will shall operate as a binding
engagement, independent of any confirmation by accepting the legacy under
it.
SECONDLY, whether the survivor can depart from his engagement,
after he has accepted a benefit under it."
On the first point, his approach was in effect akin to specifically
enforcing the contract, taking into account that all wills are at law
revocable: "This Court does not set aside the will but makes the devisee heir
or executor trustee to perform the contract" (at 309). On the second point, he
considered that when the first testator had died and by his death carried the
agreement on his part into execution, and the survivor had accepted and
enjoyed the bequest, the latter would be guilty of a fraud and become "a
trustee of course" if she refused to honour the engagement (at 310 to
311):
"Mrs Camilla Rancer having proved the mutual will after her
husband's death; and having possessed all his personal estate, and enjoyed
the interest thereof during her life, hath by those acts bound her assets to
make good all her bequest in the said mutual will." ((1769) 1 Dick. 419 at
421)
Both lines of reasoning (though perhaps less clearly in the case of the
second) appear to presuppose an enforceable contract at law. That has been
recently confirmed in Re Goodchild, (1997) 1 WLR 1216. As
Leggatt LJ put it, (at 1224): "there must be a contract at law", echoed by
Morritt LJ (at 1229): "a consistent line of authority requires that for the
doctrine of mutual wills to apply there must be a contract between the two
testators". In dismissing the argument that some degree of arrangement or
understanding short of a binding contract was sufficient for the mutual wills
doctrine, the court proceeded on the basis that without a contract property of
the second testator not acquired from the first testator could not be bound.
For this reason it rejected a suggested analogy with secret trust cases, where
only the property of the first testator was subjected to the trust.
- Until 1989 the statutory provisions were subject
to the operation of the doctrine of part performance, under which - in
simplified summary - equity would intervene to preclude the defendant from
relying on the absence of a memorandum in writing where the claimant could
point to acts of part performance indicating the existence of the contract.
Such acts created an equity in favour of the claimant which made it
appropriate for the contract to be fully implemented: Maddison v
Alderson, (1883) 8 App Cas 467. That approach was however dependent
on the fact that the contract existed and was merely rendered unenforceable by
the statute, a defect which it was unconscionable for the defendant to invoke
where part performance was established. But when the 1989 Act removed all
legal contractual status from agreements not complying with its formal
requirements, the doctrine of part performance lost an essential part of its
required sub-structure and disappeared without even the need for express
statutory abolition.
- In consequence (1) the Claimant in the present
case is prevented by section 2 of the 1989 Act from establishing the contract
at law which Re Goodchild makes clear is necessary for the
mutual wills doctrine as I have outlined it above to apply (2) the absence of
such a contract precludes reliance by the Claimant on the doctrine of part
performance.
- It does not however follow that the conduct of the
parties in the present case is necessarily without significance. While in the
mutual wills doctrine equity intervenes in support of a legal contract, it
does not always (or even normally) require such a contract before intervening.
Constructive or other trusts may arise or be imposed as a remedy in many
circumstances where a contract is absent. Nor are these precluded merely
because the parties may have reached a consensus which would have constituted
a contract but for section 2(1) of the 1989 Act. Indeed, Section 2(5) of the
1989 Act expressly provides that section 2 does not affect the creation or
implementation of resulting, implied or constructive trusts.
- These can be invoked even if they operate to
provide a remedy in an area covered previously by the doctrine of part
performance, and similar in effect, as the Court of Appeal decided in
Yaxley v Gotts, [2000] Ch 162. In that case the plaintiff was
promised the ground floor of a house if he converted the house into flats and
managed the property, which he did. The Court of Appeal held that those facts
gave rise to a constructive trust, which was properly satisfied by the award
of a 99 year lease of the ground floor, applying for this purpose the words of
Lord Bridge in Lloyds Bank Plc. v. Rosset [1991] 1 AC 107,
132:
"The first and fundamental question which must always be
resolved is whether...there has at any time prior to acquisition, or
exceptionally at some later date, been any agreement, arrangement or
understanding reached between [the parties] that the property is to be
shared beneficially. The finding of an agreement or arrangement to share in
this sense can only, I think, be based on evidence of express discussions
between the partners, however imperfectly remembered and however imprecise
their terms may have been. Once a finding to this effect is made it will
only be necessary for the partner asserting the claim to a beneficial
interest against the partner entitled to the legal estate to show that he or
she has acted to his or her detriment or significantly altered his or her
position in reliance on the agreement in order to give rise to a
constructive trust or a proprietary estoppel."
The Court of Appeal further held that it was irrelevant whether the facts
giving rise to the constructive trust also constitute a consensus which would
have been legally binding as a contract but for the operation of section 2 of
the 1989 Act. Robert Walker LJ summarised the position as follows:
"To recapitulate briefly: the species of constructive trust
based on "common intention" is established by what Lord Bridge in Lloyds
Bank Plc. V. Rosset [1991] 1 AC 107, 132, called an "agreement,
arrangement or understanding" actually reached between the parties, and
relied on and acted on by the claimant. A constructive trust of that sort is
closely akin to, if not indistinguishable from, proprietary estoppel. Equity
enforces it because it would be unconscionable for the other party to
disregard the claimant's rights. Section 2(5) expressly saves the creation
and operation of a constructive trust... To give it what I take to be its
natural meaning, comparable to that of section 53(2) of the Law of Property
Act 1925 in relation to section 53(1), would not create a huge and
unexpected gap in section 2. It would allow a limited exception, expressly
contemplated by Parliament, for those cases in which a supposed bargain has
been so fully performed by one side, and the general circumstances of the
matter are such, that it would be inequitable to disregard the claimant's
expectations, and insufficient to grant him no more than a restitutionary
remedy."
- On the face of it that summary of the relevant law
by Robert Walker LJ would appear applicable to the different facts of the
present case. On the faith of "an agreement, arrangement or understanding"
(and indeed one deprived of legal contractual character only by section 2 of
the 1989 Act) that the flat would be left to her niece, Mrs Brown on her death
passed to her husband the entirety of her estate, including her undivided
share in the flat. In doing so she performed wholly her side of the bargain as
the first to die. Not only would a restitutionary remedy be insufficient: none
is available. It would in my judgment be entirely inequitable now to frustrate
Mrs Brown's expectation and it was unconscionable for Mr Brown to seek to do
so by his actions after her death in seeking to pass the flat to the First
Defendant.
- On behalf of the First Defendant it is stressed
that the flat was not wholly owned by Mrs Brown and a one-half undivided share
was already vested in Mr Brown before his wife's death. At first blush, and on
the law as stated in Lloyds Bank v Rosset & Yaxley v Gotts,
this might appear to pose no obstacle to the imposition of a constructive
trust in respect of the entire leasehold interest in the flat which has vested
in the First Defendant. Indeed, in both cases the claimant acquired an
equitable interest in property which had always been entirely owned by the
defendant. However, in Re Goodchild, Morritt LJ (at 1231) stated
that the principle propounded by Lord Bridge in Lloyds Bank v
Rosset in the words which I have set out above "has no operation in
the case of mutual wills in regard to property already owned both legally and
beneficially by the second testator to die". Why mutual wills cases are
excluded from a rule stated as one of general application is not wholly clear.
It is of course correct that, as Morritt LJ pointed out, the principle stated
by Lord Bridge had been developed in cases where the court was considering the
equitable interest in property acquired for joint use. That might also be said
to have been the case in Yaxley v Gotts, in that the agreement
to give the claimant the ground floor of the property was made before it was
purchased, but it is hard to see why the position should have been different
if it had been made immediately afterwards. My own tentative rationale would
probably be that Lord Bridge's formula must be confined in its application to
cases where the act of the claimant is directly involved with the defendant's
property. At all events in the absence of a binding legal contract Re
Goodchild precludes the imposition of a constructive trust on any
property not acquired by the survivor from the deceased. Given the impact of
section 2 of the 1989 Act in the present case I therefore accept the First
Defendant's submission that no constructive trust can be imposed as to
one-half of his interest in the flat, corresponding to Mr Brown's own original
undivided share.
- No such inhibition applies as regards the
half-share of the flat which Mrs Brown passed to her husband. A constructive
trust in relation to that interest can be justified by reference to the
separate case-law on so-called secret trusts, the essential elements of which
were summarised by Brightman J in Ottaway v Norman [1972] Ch.
698, 171 as being
"(i) the intention of the testator to subject to a primary donee
to an obligation in favour of the secondary donee; (ii) communication of
that intention to the primary donee; and (iii) the acceptance of that
obligation by the primary donee either expressly or by
acquiescence."
While it may be possible to construct a contract out of such elements, a
claimant's interest in such a case does not derive from contract, but turns
rather on the acceptance of a trust by the recipient and avoidance of a fraud
on the beneficiary and testator: see e.g. Blackwell v Blackwell,
[1929] AC 318. Section 2 of the 1989 Act has therefore no impact on a claim
presented on this ground.
- Mrs Brown's interest in the flat did not in fact
pass under her will. It vested in her husband under the doctrine of
survivorship, since she had never served a notice severing the joint tenancy.
To that extent, the present case differs from the ordinary case of secret
trusts, since the property passed outside the will and by operation of law
rather than pursuant to a bequest. But to my mind that is a matter of form
without substantive significance. The reality of the arrangement, to which
equity should in my judgment have regard, was that Mrs Brown's entire estate
including her interest in the flat should, as it did, by one legal mechanism
or another operative on her death pass to her husband. Whether Mrs Brown's
interest in the flat passed as part of her entire estate by her positive act
of bequest or by her maintenance of the joint tenancy unsevered until her
death was of no moment, when the intention to give and the terms of that gift
were understood and accepted by her husband. He thereby accepted a trust in
favour of the Claimant to pass that interest in the flat to her under his will
(subject only to the qualification which I discussed in paragraphs 13 and 14
above as to a right to realise the property for his personal benefit during
his lifetime). The First Defendant therefore now holds the flat subject to
that equitable interest of the Claimant.
Conclusion
- For these reasons I conclude that the property at
3 Phoenix Court is held on trust by the First Defendant for himself and the
Claimant in equal shares, and I propose so to order by way of declaration.
