Can an express declaration of trust be varied informally by a common intention constructive trust? By Mark Pawlowski
- Explores a recent High Court decision that calls into question the orthodox view on express declared trusts.
- Questions how the courts will seek to reconcile the need for clarity in this area.
The orthodox view, until recently, has been that an express trust is conclusive of the parties’ intentions regarding beneficial ownership of the family home, irrespective of whether the contributions to purchase are made at the time of acquisition of the property or at a later date. In other words, an express declared trust precludes the possibility of a common intention constructive trust based on differential contributions to the purchase price until the declared trust is formally varied by subsequent agreement or displaced by the informal mechanism of proprietary estoppel. However, a recent High Court decision, Nilsson v Cynberg [2024] EWHC 2164 (Ch), has called this orthodoxy into question.
The orthodox view
The point is specifically addressed
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