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Overview

After someone passes away, there can often be disputes about the ownership of property or assets that might form part of their estate.

Disputes regarding the ‘true’ ownership of a property / the deceased’s home will usually be decided by the court under the provisions of the Trusts of Land and Appointment of Trustees (TOLATA) Act 1996.

The court can decide who owns a property (and in what shares) and who can remain in the property.

The most common ways in which someone may claim they have an interest in a property is by way of a ‘resulting’ or ‘constructive’ trust.

Resulting Trust

A resulting trust arises when the beneficial ownership of the trust property returns back to the person who set up the trust.

An example of this is where person A lends funds to person B to assist them with the purchase of a property without entering into an agreement as to what is to happen to the funds. If agreement cannot be reached as to how the property is held, the court may decide that person B is holding all or part of the property on a resulting trust for the benefit of person A.

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Constructive Trust

A constructive trust arises where it would be ‘unconscionable’ for person A who holds an asset to deny the beneficial interest of that asset to person B.

An example of this is where person A owns a property and person B has contributed towards the mortgage payments or refurbishment works of a property.

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