Cohabitants’ rights(1)

Negus v Bahouse [2007] All ER (D) 353 (Oct)

When Henry Bahouse died in March 2005, he had been cohabiting with the claimant at the property he owned since 1997. Under his will, his son from his first marriage was the major beneficiary of his £2.2m estate and no provision was made for the claimant. The claimant applied for a declaration that she had a beneficial interest in the property based on s14 of the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) together with, or in the alternative, reasonable financial provision. Under s1(1B) of the Inheritance (Provisions for Family and Dependants) Act 1975, the claimant was a person to whom the Act applied as she had, for the whole of the period of two years ending immediately before the date when the deceased died, lived in the same house as the deceased partner. The claimant’s evidence was that she had given up work to become a housewife for the deceased and they had plans to marry. She said that the deceased repeatedly commented that she would have a roof over her head and she would be taken care of. In dismissing her claim under TOLATA, the judge said: ‘It is important to remember that the court cannot adjust the shares under thisAct; it can only declare them unlike the court’s power, for example, under s24 of the Matrimonial Causes Act 1973. It is also important to remember that s53(1) of the Law of Property Act 1925 provides that, no interest in land can be created orally and no declaration of trust in respect of land can have effect if made orally. However, excluded from this ambit by s53(2) are resulting, implied or constructive trusts. Thus, the usual way the interests are established are by one or other of these methods or, as Ms Negus seeks here, by the doctrine of proprietary estoppel. Since she is the one who is seeking to depart from the legal title in the name of Henry and show that there was a joint beneficial entitlement, the burden is on her: see Stack v Dowden [2007] 2AER 929 HL at p953, paragraph 68 per Baroness Hale of Richmond.’ This burden she failed to discharge and her claim to an interest in the property failed, but she had established a case for reasonable financial provision for her lifetime, which would be the transfer of the property to her, without the encumbrance of a mortgage and the payment of £240,000.