Tag Archives: trusts

Equitable joint tenancy, I presume?

(Modern Land Law post alert. Some readers may be disturbed by graphic scenes of real property disputes).

There may be some points of interest for Land Law students in a Court of Appeal judgment handed down last month: in particular, with regard to co-owned real property beyond the ‘family home’ context.[i]

Williams v Williams [2024] EWCA Civ 42 was about rights in Cefn Coed Farm, near Neath. It was uncontroversial that this had been held at law by a married couple and one of their sons: Lloyd Williams (father, now dead); Catherine Williams (mother); Lloyd Dorian Williams – who were registered as proprietors – as joint tenants. The dispute was about the structure of their holding in equity. There was no express declaration as to how the equitable interest should be held, so were they joint tenants or tenants in common? This mattered, because they needed to know whether or not survivorship had occurred (given that Lloyd Williams was dead).

Given how much attention has been garnered by ‘the big cases’ on co-ownership, Stack v Dowden and [2007] UKHL 17, [2007] 2 AC 432 and Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776, students may be ‘programmed’ to jump in favour of joint tenancy in equity here. Certainly, there are suggestions there that this should be the answer in ‘quasi-matrimonial home’ cases.

Here, though, the judge at first instance went for TICs in equity, and the appeal against this failed. Why? Nugee LJ gave the leading judgment (and the other two judges agreed – to the relief of law students everywhere, who are also cheering the relatively short judgment: this is no Guest v Guest).

Nugee considered just what was said in this context in Stack and Jones. There was Lady Hale’s statement (Stack, 58) that:

“at least in the domestic consumer context, a conveyance into joint names indicates both legal and beneficial joint tenancy, unless and until the contrary is proved.”

And the approach from a slightly different direction, in Jones, in which Hale and Walker started from the resulting trust v. constructive trust analysis debate. This is not the same as JT v TIC in equity, but the focus on contribution found in the RT analysis does have an affinity with one justification for equity’s preference for a TIC – that unequal contributions make a JT undesirable, or not what we can imagine parties would generally intend.

One strand of argument in Williams was about the applicability of a presumption of equitable joint tenancy, when there was a legal JT, and no express declaration of equitable interests, to a non-‘domestic couple’ context. Nugee noted that some of Lady Hale’s statements did seem to take the presumption of equitable JT beyond the domestic context, but thought that there was a significant difference.

It is useful to be reminded, at 53., that the JT/TIC issue is not simply a matter of intoning ‘equity follows the law’ – there are, as Walker and Hale stated in Jones [19], other reasons for the strong preference for a JT in equity in the ‘couple home’ context. In their words,

‘a challenge to the presumption of beneficial joint tenancy is not to be lightly embarked on’,


‘If a couple in an intimate relationship (whether married or unmarried) decide to buy a house or flat in which to live together, almost always with the help of a mortgage for which they are jointly and severally liable, that is on the face of things a strong indication of emotional and economic commitment to a joint enterprise.”

The fact that this justification is tied to that particular context means that it needs re-examination for fact situations outside that type of domestic setting and intimate partnership. Here, although Cefn Coed was a place to live, it was very much a farming business. Nugee noted [55] that

‘However close they were as a family, the relationship between Dorian and his parents cannot be equated to that between a married or unmarried couple.’

They were business partners, making decisions, including this property purchase, for commercial reasons. This, then made the trial judge’s decision to prefer the old equitable idea that, in business cases, co-owners don’t intend survivorship, and thus that they will hold as TICs in equity. This is reconciled with the Stack/Jones statements by saying [63] that there is some presumption that the starting point, even in commercially-inflected cases is JTs in equity, but it is not too hard to make out a case for TIC, in those cases (unlike the situation in couple-home cases):

‘Where such property is acquired for business purposes, the Court will very readily assume that survivorship, and hence joint tenancy, was not intended.’

A strong point here is that, while putting property in joint names

‘no doubt … raise[s] a powerful inference that the legal owners were intended to be beneficially interested in the property’’, 

the next step, the presumption that this means the equitable interest is held as a JT, is weaker, because the only available structure for a legal title is JT, so no real choice has been made here. ‘In those circumstances, the inference that they thereby intended a beneficial joint tenancy with its right of survivorship rather than a tenancy in common seems to me likely to be in many contexts a much weaker one, and in the case of land bought for business purposes one that is easily and normally displaced by the presumption that such property is intended to be held in common.’

Also worth noting, for students, is the useful explanation, at 49, of why it is not always going to be necessary, in answering a problem question involving co-ownership, to discuss the structural JT/TIC/severance issues:

…[the right of survivorship] is not usually an issue in most cases of the Stack v Dowden type. Most such disputes are disputes between two co-owners who are still alive and whose relationship has broken down, and in such circumstances if there is any possibility of a beneficial joint tenancy one or other of the parties is very likely to be advised to serve a notice to sever any joint tenancy that exists, something that can be done very simply. The dispute will almost always therefore not be about whether they own the property equally as joint tenants or equally as tenants in common, but whether their shares are equal or not.

All in all, a case which does a bit of clarifying of this area, up to a point, and which might be finding a place on my reading list next year.





Image: some mud. I think it is a safe bet that there would be some mud on the farm in question. Photo by Matt Seymour on Unsplash

[i] No doubt there will be some more considered discussions of this. For early comments, see, e.g., this, which also considers the constructive trust v. resulting trust issue.

The Barmaid’s Belly: a late case of de ventre inspiciendo

Today, I am researching (in so far as it is possible, without usual access to libraries, archives etc.) a late instance of the writ de ventre inspiciendo – ordering the inspection of a woman claiming pregnancy, by women, in civil proceedings. It has come up in my research on ‘Unknowns at the Start of Life’ for a swiftly approaching paper (April), and needs a bit of thought.  The case was heard in Knight Bruce VC’s court, on 8th May, 1845.[i]

It involved a dispute about a trust. A ‘gentleman of the name of Blakemore’ had some property – he held it as tenant for life, and the remainder was held by trustees on a thousand year term, on trust to provide money for Blakemore’s issue, and the remainder was for the people bringing the action here.

The petitioners were not able simply to have the property, however, because there was a competing claim, from the ‘gentleman of the name of Blakemore’s wife: this woman claimed to be pregnant with Blakemore’s child, and, if that was so, then the child would be entitled to money from the trust. It was therefore in the interest of the petitioners to cast doubt on this claim to be pregnant with Blakemore’s child.

The petitioners proceeded with the doubt-casting by portraying both Blakemore and his widow as dubious characters. It is not altogether clear why they needed to have a go at Blakemore himself, but apparently there were affidavits which ‘represented [him] to have been a man of dissolute and intemperate habits’. It was probably with a view to having a go at both of the spouses that they stressed that he had ‘married the barmaid of an inn in Wales’ (not just some barmaid, but a Welsh barmaid – just at the time that Welsh women were about to be insulted quite horrendously in the treacherous Blue Books, as being of extremely easy virtue). Blakemore had, so they said, come to London, leaving his Welsh barmaid wife behind, and died in January 1845. He was dead then, so the petitioners couldn’t have a go at him any further, but they had not finished with the widow Blakemore. They said that she had ‘carried on adulterous intercourse’ with the groom of her husband, during the latter’s absence before his death, and after she was widowed, had started to live with the groom ‘as man and wife’ (and as if that was not bad enough ‘at a certain public-house in Wales’, and the ‘subsisting connection’ was ‘one of sin’ (rather than there having been a second marriage).

The report is a little telegraphic (v. much the latest thing – see how on point my tech reference is?) but it is clear that an order was made for an inspection of the widow, by a ‘jury of women’. Although some of the evidence on behalf of the petitioners seems to have been not that the widow was not pregnant, but that she was not pregnant with her dead husband’s child, the inspection would not have been of any value in relation to that issue. Perhaps the point is that they were trying to discredit both the existence of a pregnancy which had begun during the marriage, and also, if that failed, to do the more difficult job of rebutting the presumption that the child of a married woman was her husband’s issue. This had become a little less difficult in the first part of the 19th C, but very strong evidence was still required.

So, the petitioners’ case can, perhaps be understood. The puzzle, from my point of view, is that there does not seem to have been much interest in the press. Why did I expect that there would be? Well, sex, adultery, class, bashing the Welsh – good ways of getting people to read your paper, I would have thought. Then there is also the de ventre inspiciendo process itself – now something of a rarity in civil cases, and, when it was proposed in a case in 1835 (of which more in a later post) it was considered quite, quite scandalous, and cruel. Could the difference possibly have been that between a respectable English tradesman’s wife – easily believed to be too delicate to be poked and prodded (the situation in the Fox case of 1835)– and a Welsh barmaid, who could not be imagined to have any finer feelings? Surely not.

Further details on the parties, the story, and whether there ever was an inspection of the body of the much-maligned Welshwoman will have to await the great re-opening of the archives. Another one for the pile!



(Photo by Blake Cheek on Unsplash)

[i] Blakemore v Blakemore 1 Holt Eq. 328; 71 ER 769; In re Blakemore, 14 L.J. (NS) Ch. 336 (1845).

Latest Journal of Legal History – some more for the reading list

issue 3 for 2016 features articles on: the reception of Magna Carta in early modern Germany, charitable trusts and the 1857 divorce law reforms.

German legal history is something with which I have always meant to become better acquainted: it has just always seemed so daunting in its variety. That being so it is good to have an entry point like Magna Carta to use.  Carsten Fischer’s ‘The Reception of Magna Carta in Early Modern Germany, c. 1650–1800’, pp. 249-268 describes the reception of MC in German scholarship and letters more generally. His clear point is that this amounted to the reception of a trope or reputation, with interest centred upon the 17th C revival/ translation of MC, and the assumption that MC = liberty, rather than a careful excavation of the actual content and medieval context of MC. I was particularly interested in some of the less-impressed comments from 18th C German commentators – conveying the idea that the English were deluded in their idea of their own freedom (some interesting resonances in these darkening times), and in the idea of using discussion of MC as a proxy for possibly dangerous comment on German issues.

The requirements of charitable trusts is something which featured on my radar a few years ago when I was joint-supervisor of a Ph.D. in this area. It was, therefore, interesting to see the careful and convincing research and argument in this area in M. Mills, ‘The Development of the Public Benefit Requirement for Charitable Trusts in the Nineteenth Century’. This traces the familiar oddness of doctrinal development in England, with strands of obiter, general comment and elements of mortmain law reasoning combining with social developments to create a rule for qualification for charitable trust status. Admirably done.

And finally, one which I will be using with my Legal History students, H. Kha and W. Swain, ‘The Enactment of the Matrimonial Causes Act 1857: The Campbell Commission and the Parliamentary Debates’. This provides an accessible and illuminating account of the Campbell Commission and debates leading up to the MCA 1857. Interesting psychological effect (in this moment of clashing past and present, as we wonder what is the best response to convictions of former crimes now not seen as wrong https://www.theguardian.com/law/2016/oct/21/chris-bryant-commons-plea-gay-pardon-law )- although I am always conscious of not regarding medieval people with contempt, even when I disagree with them, I do find it difficult not to get exasperated with the hypocrisy of Victorian lawyers and parliamentarians. Will have to work on my anti-19th C prejudice.





Fraud and fungus: a fresh look at Rochefoucauld v Boustead [1897] 1 Ch. 196

An interesting and careful reappraisal of a case very well known to teachers and students of equity and trusts is provided in G. Allan, ‘Ceylon coffee, the Comtesse and the consignee: a historical reappraisal of Rochefoucauld v Boustead’, Journal of Legal History 36:1 (2015) 43-82. This goes some years into the background of the behaviour and transactions which culminated in this important case, dealing along the way with divorce, Roman-Dutch mortgage law and agricultural catastrophe. The Comtesse of the title emerges as an intriguing figure well worth literary treatment – and a follow-up film which could include scenes in Ceylon, Paris, Baden Baden and London. Winslet? Scott-Thomas? Clearly an Oscar-worthy role. It also provides some less-obviously dramatic but careful consideration of the categorisation of trusts, and thinking about equitable fraud, at the time of the case, which is worth taking into account when looking at it for the purposes of modern legal doctrine and practice.