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No presumption of advancement as between estranged husband and wife

By: Hannah Godfrey BL

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High Court rules that a former wife holds a legal and beneficial interest in property for which mortgage a was discharged in 2008 without her knowledge, on the grounds that: (a) the presumption of advancement would not be applied as between estranged husband and wife, in particular where the property was an investment property and not a family home; (b) a resulting trust arose because of the unequal contributions to the purchase price and because both parties remained equally liable for the mortgage repayments, and hence a portion of the beneficial interest was held on trust for the estate of the deceased; and (c) the deceased, in alienating his interest in 2008, severed the unity of interest in the property and the beneficial interest in the property was held as a tenancy in common.

Beneficial ownership of a buy-to-let property - proceedings brought by executor of estate of deceased former husband of first defendant - interest held by the first defendant in the property in 2008 when mortgage was discharged - mortgage discharged using loan in name of deceased and his second wife - first defendant unaware of the discharge and had believed rental income had continued to be used to pay mortgage instalments - plaintiff consented to accept worst possible interpretation for the estate to avoid calling witnesses as to events in 2008 - court unable to determine determine common intention of deceased and first defendant when the property was purchased in joint names or the intention of deceased mortgage redeemed in 2008 - whether presumption of a resulting trust applied - whether presumption of advancement applied between estranged husband and wife - whether joint tenancy had been severed.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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