In the seminal cases of Stack v Dowden and Jones v Kernott the highest courts in the land attempted to bring clarity and simplicity to the law on disputes arising as to the ownership of property where the extent of co-owners’ beneficial entitlements has not been recorded in an express declaration of trust. However, despite being two of the most important property law cases of the last century, these historic judgments raised almost as many, if not more, questions than they answered. One outstanding question that remains largely unresolved is how far a properly executed declaration of trust (whether as part of a TR1 form – the form needed to transfer registered titles – or contained in a separate instrument) is definitive of the parties’ beneficial interests in the property. Put differently, as the legal landscape has shifted towards a more holistic, broad brush, highly contextualised approach to the assessment of parties’ common intentions post-Stack and with the acceptance, in Jones, of the ambulatory constructive trust, to what extent is the court permitted to go behind the clearly-stated intentions of the parties evidenced in an express declaration in order to infer a new bargain as to beneficial ownership? It is to that important issue of formality that this article is directed. Despite a long-standing acceptance that a formally executed declaration of trust is conclusive and binding as to parties’ respective beneficial entitlements (subject to vitiating factors), this position is now under increasing threat. Legal practitioners and some members of the judiciary are challenging and seeking to undermine the established orthodoxy by relying on the highly discretionary and flexible approach to common intention heralded by the rationalisation of the law in Stack and Jones …
Chris Bevan, ‘The search for common intention: the status of an executed, express declaration of trust post-Stack and Jones’ (2019) 135 Law Quarterly Review (October) 660.