Confronting Mortality - Professional Advice Helps Produce Order from Chaos

Confronting mortality is never easy and many people put off making decisions critical to their own future, and that of their loved ones, until after the onset of serious illness or old age. Such a course involves serious legal risks but, as a High Court case showed, they can be effectively offset by taking professional advice.

The case concerned a woman who died at the age of 60 after enduring many years of ill health, including two strokes. Four years previously, she had purchased her home at a discounted price of £180,000 from her local authority landlord under the 'Right to Buy' scheme. The property had since increased in value to at least £400,000.

She and her daughter, who lived with her, took legal advice prior to the purchase and signed a declaration of trust which on the face of it confirmed that they held the property in equal shares as joint tenants. The declaration was duly lodged at the Land Registry.

The woman's son, however, launched proceedings on the basis that the declaration was the product of a mistake and should be rescinded. He asserted that his mother was the property's sole beneficial owner from the date of its purchase until her death and that it formed part of her estate, of which he was entitled to a share.

Rejecting that claim, the Court noted that the woman could not have proceeded with the purchase without her daughter's assistance. The daughter was young and working and only she could obtain the necessary mortgage. She put over £100,000 of her own money into the purchase and thereafter covered the mortgage repayments and outgoings. It beggared belief that she would have done all that on the basis that she would have no beneficial stake in the property.

The Court ruled that a subsequent document by which the woman was said to have transferred her share in the property to her daughter outright had not been validly executed. The woman was by then extremely unwell and, had her daughter not held and guided her pen, she would have left no mark on the document.

There was, however, no evidence to justify rescission of the declaration of trust, the contents of which accurately reflected the mother's and daughter's common intention that they should own the property jointly. The ruling meant that the mother's half share in the property passed automatically to her daughter on her death.