When a property is purchased jointly, the owners often record their intentions about ownership in an express declaration of trust. This is usually contained within the TR1 transfer form or set out in a separate trust deed, confirming each party’s beneficial shares.
An express trust is normally regarded as conclusive evidence of the parties’ intentions at the time of purchase. However, in limited circumstances, it may be possible to challenge or set aside that declaration – for example, where it was obtained through duress, undue influence, fraud, or mistake.
Our TOLATA specialists advise clients on both bringing and defending claims to challenge express trusts, ensuring that your ownership position is properly protected.
When might an express trust be challenged?
Although the law gives strong weight to written declarations of trust, there are situations where fairness and justice require the court to look behind the document.
Typical examples include the following.
- Duress: where a party was pressured or coerced into signing a declaration of trust, leaving them with little or no meaningful choice in the matter.
- Undue influence: where one party exploited a relationship of trust or dependence to secure an ownership share in their favour.
- Fraud or misrepresentation: where one party made false statements or concealed key information, inducing the other to sign a declaration they would not otherwise have agreed to, or else forged their signature on the document.
- Mistake: where both parties signed a declaration believing it accurately reflected their intentions, but due to an error, it did not (for example, the wrong shares were recorded by the conveyancing solicitor).
These cases are fact sensitive and require careful gathering of evidence, including how the declaration came to be executed, what advice was (or was not) given, and whether the circumstances surrounding the signature were fair and informed.
The legal framework
Where an express trust is valid and free from vitiating factors, the court will generally treat it as binding. The starting point under TOLATA is, therefore, the written declaration itself.
However, if the court is satisfied that the declaration should be set aside – for example, because of undue influence or fraud – it can disregard the written terms and determine the parties’ true beneficial interests using the same principles that apply to constructive or resulting trusts.
How Birketts can help
Our TOLATA specialists provide experienced advice in challenging or defending express trusts. We can:
- analyse the circumstances in which the declaration was created and signed
- assess whether there is evidence of duress, undue influence, fraud or mistake
- gather and prepare supporting witness and documentary evidence
- explore negotiation or mediation where a consensual resolution is possible
- represent you robustly in court proceedings where the validity of the trust is disputed.
We act for both claimants seeking to challenge a trust deed and defendants seeking to uphold one, ensuring that your position is advanced strategically and proportionately.
Our experience
- Acting for a client to set aside fraudulent declarations of trust prepared by their ex-partner, which falsely claimed a 50% share in our client’s property. We successfully overturned the fraudulent documents at trial, with the assistance of a handwriting expert, and secured full indemnity costs for our client.
- Acting for a client who owned a property jointly with his parents. According to the declarations of trust contained in the property deeds, our client owned 50% of the beneficial interest. His parents challenged those declarations on the grounds of alleged misrepresentation and undue influence. Following a summary judgment application, the court declared that our client owned 50% of the beneficial interest.
- Acting for a client who signed a separation deed which included a new declaration of trust that she should receive no interest in the property and transfer her share to her ex-partner. We argued that this should be set aside on the grounds of duress. It was necessary for us to provide clear evidence as to the nature of the relationship and the circumstances surrounding the drafting and signing of the separation deed. Through negotiation, we were able to reinstate her interest and achieve a substantial lump sum for her upon transfer of the property.
