Recording his intentions in writing could have saved this family a good deal of time, legal fees and heartache.
In 1990, the testator, T, bought a freehold property.
At his request, the seller transferred the title to one of his sons, S1, who was registered as the legal owner.
The property was renovated by T who also asked S1 and his other son, S2, to help him.
In 1997 or 1998, T moved into the property and sold his former home to S1. The property was adapted so that T could live in it more easily. T died in 2002.
A Will was found, but it was held to be invalid, as it had not been appropriately witnessed. S2 was appointed the administrator of the intestate estate.
A dispute arose regarding the ownership of the property and, in 2013, S2 began proceedings on the basis that T had been the beneficial owner of the property and that S1 had held it on trust for T during his lifetime and now held it upon trust for T's estate absolutely.
S1 submitted that the burden was on S2 to prove that S1 held the property on trust and that, on the evidence, he was unable to discharge that burden.
Consideration was given to, among other things, whether S1 had lived in the property during the renovation work, whether T had paid certain bills in relation to it and to comments made by T on his council care assessment regarding S1 being the legal owner of the property.
The claim was allowed as, on the evidence, T had not purchased the property to make a gift of it to S1; it had been bought as a speculative investment. The evidence did not support the claim that T had told S1 that he would make a gift of the property to S1. He had instead simply been informing S1 that the property was to be put into S1's name. T had not discussed the ownership of the property with S2, S1 or other members of the family and had not told any of them that he would make a gift of it to S1.
It was unlikely that T would have asked S2 to work on the property if it had been intended as a gift for S1. The property had not been habitable during the renovation work and T had paid the relevant bills. The invalid Will implied that T had wanted to treat his sons equally in the division of his estate.
T's decision to move into the property, the alterations made to it for him and S1's purchase of T’s former home were consistent with him having regarded it as his own. Further, T's comments on his council care assessment merely reflected the fact that the property had been put into S1's name.
S2 had discharged the burden of proof on him; a declaration would be made that S1 held the property on trust for T's estate absolutely, so for both sons in equal shares.