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(Court of Appeal; Arden, Wall and Lawrence Collins LJJ; 13 June 2008)
Following the husband's divorce from his first wife, he entered into a written agreement with her that provided for the wife to convey her half share in the former matrimonial property to the husband on the basis of his undertaking that the wife's interest would devolve to the couple's daughter when the husband no longer wished to occupy the property. The husband remarried but continued to live in the property, eventually transferring the property into the joint names of himself and his second wife, 'in consideration of natural love and affection'. On the husband's death, intestate, the second wife argued that she held the entire beneficial interest in the property; the daughter claimed a half share in the property. The judge rejected the daughter's claim on the basis that the written agreement had been contract to make a will.
The daughter's appeal was allowed. It was clear that the husband and his first wife had intended to create a trust of the beneficial interest, subject to the husband's right to occupy the property if he wished to do so. They had intended that the property should not be further mortgaged and that the daughter should get the property at some stage.
The Red Book is the acknowledged authority on practice and procedure