ABSTRACT

Lord Bridge’s first category of evidence suggests that the common intention/ agreement may only be established by evidence of express discussion between the parties. This appears to be an unwarranted restriction on the adduction of evidence of an agreement as to a beneficial interest. An agreement or understanding is capable of being inferred from conduct. For the application of this rule, see Hammond v Mitchell and Springette v Defoe [1992] 2 FLR 388, CA, p 266 below. Glover and Todd, in ‘Inferring share of interest in home: Midland Bank v Cooke’ [1995] 4 Web JCLI, take the view that constructive trusts and proprietary estoppels are separate and alternative ways of acquiring beneficial interests. The explanation of the requirement for express discussion is akin to an express declaration of trust. To be effective, an express declaration of trust must be immediate and attach to an identifiable amount of property. Statements as to future intention are insufficient to amount to declarations of trust, but may be sufficient to found an estoppel. The writers take the view that ‘estoppels differ from trusts in that they do not necessarily create full beneficial interests, the position of third parties is different, A’s intention can be as to future and indeed, the property need not even be identified’.