This type of claim often relates to family homes where the Deceased partner (spouse or cohabitee) is the legal owner and the survivor therefore has no rights to live there or to sell it. This type of claim often accompanies a claim for financial provision where a surviving partner is left out of a Will and so does not stand to inherit the property.
Many relationships are based on unspoken or informal arrangements between partners. Perhaps one goes out to work and the other stays at home with the children or perhaps one of them is named on the deeds and the mortgage but for some reason the other partner cannot be and so contributes a monthly amount towards that expense. In those situations it would be unfair for the partner who did not have the legal rights to be evicted or to lose the ability to stay in the family home.
Where there is no legal document defining the agreement, it can still be proved to the Court by providing evidence of the conduct of the parties to show that there was an agreement and therefore that the intention was that even though the legal documents (deeds/mortgage) showed only one name, that it was actually held equally between them. This demonstrates that constructive or ‘common intention’ trust has been created between the parties.
The available remedy for the Court in a situation where such a trust has arisen is for the relevant property or proceeds of sale to be available for the Claimant, rather than being comprised within the Deceased’s estate.
