1. 1
The misapprehension of one’s power drives one to do many things, but that does not concern
the law as the law is upheld through man made authorities. That is why Adam’s parents,
Ben’s mother and Zainab are claiming an interest or a proportion of shares from the property
that was co-owned by Ben and Adam after Adam’s death as a result of suicide in September
2012. This case can be divided into 4 issues being1) Does Adam’s parent have a claim on the
property based on intestacy rule? 2) Is Zainab a beneficiary and is entitled to a share in the
property? 3) Does Ben’s Mom have a beneficial interest on the property allowing her to claim
10% of shares? 4) Does Ben’s ownership benefit him a right of survivorship?
If a person dies without a will, they are said to have died intestate. Thus, the deceased’s estate
would have to be distributed according to the laws of intestacy which sets out a list of
relatives or rather statutory set of rules which leaves the person’s estate to the next of kin in a
fixed manner of who should inherit the property if no will exist from the deceased and if the
deceased had died with no spouse/civil partners or relatives at all, the estate will be passed to
the Crown. According to Gould v Kemp, right of survivorship takes precedence over
testamentary disposition. Thus, it would be irrelevant to say that Adam’s parents are claiming
a share of the property under a will. However, they could argue that Adam himself had
severed himself from a joint tenancy to a tenancy in common applying one of the three
methods from William’s v Hensman 1861 being an act of a joint tenant operating upon his
share that would destroy the unity of title. Such act that could destroy the unity of title can be
illustrated from Adam’s act of assuring Zainab that she will have as much share as he has,
having no regard to Ben’s decisions or considerations which would imply that he had treated
the share as a separated portion of share of his own rather than treating the whole property’s
interest as a whole as supposed to in a joint tenancy. It doesn’t matter whether or not the other
joint tenant knew of such act. (Mortgage Corporation v Shaire)Therefore, this proves that
Adam had severed himself from a joint tenant to a tenancy in common. Hence, as he has
severed, the principle of survivorship no longer operates as he is now a tenancy in common in
equity and since he had not left a will, his parents would succeed in obtaining his half share of
the property under the intestacy rule. Moreover, following the intestacy distribution list from
1st February 2009, since there is no spouse/civil partner or children, the estate will go to the
parents in equal shares.
On the other hand, Zainab is also claiming an interest in the property by reason of her
contributions to the mortgage repayments. It would be legit if she claims that she has an
implied co-ownership under a constructive trust for a proportion of the share based on the
facts mentioned. Furthermore, she could also claim half of the share of the property through

2. 2
proprietary estoppel by virtue of a promise made by Adam in 2010 which he assured her that
when she moved in with him, his share would be as much hers as his. Firstly, in order for her
to claim an interest in the property she would need to be a co-owner not necessarily in law but
in equity. Using the tests laid down in Lloyd’s Bank v Rosset, since there is an express
agreement by Adam that his shares would be as much hers as his if she moves in whilst he is
alive, it is safe to presume that the term “shares” used by Adam is referring to the share of
ownership. In addition, she also did made significant contributions monetarily in terms of
paying Adam’s part of the mortgage instalments which would suffice to an express
agreement. (Grant v Edwards)Also, when an express agreement is present, the non-legal
owner is obliged to prove detriment suffered in reliance of the said agreement. (Chun v Ho)
Zainab eventually did give up her rented flat and moved in with Adam in order to pay Adam’s
mortgage instalments when he ran out of money in 2010. This clearly shows that Zainab
suffered detriment on her part. Therefore, it is safe to say that there is an express agreement
to co-own the property by Adam to Zainab which she would have a beneficial interest in the
property under a constructive trust. In terms of common intention to co-own the property,
Zainab did made financial contributions in terms of mortgage instalments which according to
Jones v Kernott, would amount to a common intention to co-own the property at the time
when she gave up her flat solely because she could move in with Adam and start paying for
Adam’s part of the mortgage instalments. Although the common intention to co-own the
property at first when Adam and Ben bought the property did not involve Zainab, following
the judgement in Jones v Kernott common intention can change in time, which applying to
this case, the common intention to co-own the property involving Zainab had change after she
gave up her flat and started paying for Adam’s mortgage instalments which she would be
deemed to have a common intention to co-own the property. In addition, after Zainab and
Adam broke up their relationship, she did also started a new relationship with Ben, the other
legal owner of the property, which is safe to assume that she continued living there but with
Ben and it is likely that she continued paying mortgage instalments. This justify her common
intention to co-own the place have not again change for the second time, meaning that she
would have altered her common intention if she had left after the breakup which she did not.
Summing it all up, it is safe to infer that she had common intention to co-own the property
with both Ben and Adam at different period of time. Thus, she could easily succeed in
claiming an interest under a constructive trust. Furthermore, if all else fails under a
constructive trust, she could still claim an interest under proprietary estoppel. In order for her
to do so, she would have to satisfy the three elements of proprietary being assurance, reliance
and detriment. (Taylor Fashions Ltd v Liverpool Victoria Trustees)Assurance can be easily

3. 3
justify since the fact states that Adam expressly assured Zainab that she would have as much
shares as his when she moves in. She did in fact relied on Adam’s assurance and gave up her
rented flat so that she could move in with him in order to start paying for his mortgage
instalments which shows detriment. In addition, reliance can be said to be present when both
assurance and detriment is present. (Gillett v Holt)Therefore, as she could easily satisfy the
three proprietary elements, she is deemed to have acquired an equitable interest in the
property. This case can be distinguished from cases such as Yaxley v Gotts or Cobbe v
Yeoman’s Row as these 2 cases involved orally made contractual agreements as compared to
an assurance which made Zainab’s interests to the assurance of the property a proprietary one.
Hence, either by way of a constructive trust or proprietary estoppel, Zainab can claim a share
of the property easily.
Furthermore, Ben’s mother is claiming a 10% share in the proceeds of sale by virtue of her
contributions of 10% to the purchase price. She could use either a resulting trust or a
constructive trust as her point of argument. Firstly, a resulting trust would arise when she
contributed to the initial purchase price of the property, thus allowing her to have a beneficial
interest towards the share of the property as a tenancy in common in equity.(Lloyds Bank v
Rosset)However, since her contribution of £10,000 towards the deposit of the £20,000
through Ben was intended as a loan, it would not suffice as a beneficial interest as it clearly
shows that she did not intend to acquire any beneficial interest at that point of time, instead, it
would fall under the presumption of advancement which states that the contributor intended
the contributions as a mere gift or loan to the person receiving it. In addition, as a parent, the
presumption of advancement would presume from anyone acting in loco parentis towards a
child that he/she assumes the responsibility of providing for a child will be making a
gift/loan(advancement)for the child be it the mother or the father. (Re Cameron)On the other
hand, she could also argue under a constructive trust which would entitle her a beneficial
interest as a tenancy in common as there is no express declaration of trust. Since she is
claiming a share of a property under a single name, the rules in Lloyds Bank v Rosset would
apply. There is clearly no express agreement made regarding her share towards the ownership
of the property. Therefore, she most probably would rely on common intention as her main
source of argument. If we were to follow Lloyds Bank v Rosset, she would have a common
intention as she did contribute to the initial purchase price of the property through Ben.
However, according to the leading case, Jones v Kernott, regarding common intention, Lady
Hale had come up with a more liberal approach which states that common intention to co-own
can be acquired through their conducts and common intention could also change. If there is no

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evidence from which the original or changed intention may be ascertained, the court will
decide the shares base on what is fair having regard to the whole course of dealing.(Oxley v
Hiscock)Applying this to said case, Ben’s mother would have a very slim chance of
succeeding. Initially, her common intention was not meant as an intention to co-own the
property and it would be very hard for the courts to accept the fact that her contributions was
made through Ben as a loan would amount to a common intention to co-own the place. In
addition, she never contributed anything else other than the £10,000 loan to the son. Hence, it
is unlikely for Ben’s mother to claim a 10% share in the proceeds of sales.
The right of survivorship allows a joint tenant to solely own a property if all the other joint
tenants dies.(Burton v Camden LBC 2000)To determine whether Ben’s ownership benefits
him a right of survivorship(Ius Accrescendi), the first thing to identify is whether there is co-
ownership. According to the facts, Adam and Ben had bought a 2-bedroom flat in east
London for £100,000 in the summer of 2008 which each of them paid £10,000 towards the
deposit of £20,000 and the rest of the purchase price was raised by means of a joint mortgage
of £80,000 repayable over 20 years. Thus, the property was conveyed to Adam and Ben as
joint tenants in law behind a trust of land, under the Trust of land and Appointment of
Trustees Act 1996. Co-ownership can be identify through the 4 unities, unity of possession,
unity of interest, unity of title and unity of time which can be proven easily since neither
could afford to buy property on their own and they had equal possession over the property as
they agreed to be joint tenants, had the same interest to live in that property, they both derive
their title to the land from the same document and their interest vest at the same time
specifically in the summer of 2008. As the 4 unities are proven, there is co-ownership under a
joint tenancy. (Corin v Patton 1990)In order for Ben’s right of survivorship to suffice, he must
also be a joint tenant in equity as being a tenancy in common in equity would not entitle him a
right of survivorship. In equity, following the maxim “equity follows the law” since there is
no express declaration on paper between them, they are presumed to be joint tenants in equity
since they are joint tenants in law. (Stack v Dowden)Also, Ben had never done anything that
would cause him to sever his joint tenancy into a tenancy in common which then the principle
of the right of survivorship would not operate. Therefore, Ben is entitled to the entire property
through his right of survivorship. According to S.184 of the LPA (Law of Property Act 1925)
it would irrelevant to say that Adam did left a will stating his share of joint tenancy as the
survivor takes all. However, since Adam had severed himself, the principle of the right of
survivorship will no longer operate as both Ben and Adam are now considered to hold

5. 5
property as tenants in common with a half share each. Hence, Ben is not entitled to the entire
property, but nevertheless 50% share of the property.
In conclusion, Ben’s mother would hardly succeed in her case base on her £10,000
contributions to the purchase price since she can hardly prove an express agreement or a
common intention to co-own the place which could imply her co-ownership. It would seem
unfair that after 4 years from her contributions, she never mentioned any intention to co-own
or to be entitled to a proportion of shares, but she only recently did claim for a 10% share
after the flat prospered through proximity to the Olympic Games stadium which drastically
skyrockets the value of the flat. On the other hand, both Zainab and Adam’s parents can easily
claim a share of the property which shows a contradiction involving the laws of intestacy and
proprietary estoppel. However, Zainab would have a better chance of claiming a share in the
property as her point of arguments are arguable as compared to a passive regime of laws
involving intestacy which would suffice only when the court finds that the estate is left
without a will or any indication of the deceased’s intention as to who would inherit the estate.
Moreover, Zainab also could easily gain an interest under a constructive trust which makes
her an implied co-owner of the flat as well. This clearly shows that the chances of Zainab to
succeed in a claim are almost ascertained. On the other hand, it is highly doubtful that Adam’s
parents would still succeed in claiming half of the property’s share simply under intestacy rule
where they clearly had no interest to begin with as compared to other co-owners with higher
interests. Hence, Ben cannot own the entire property through right of survivorship, but likely
50% of his share.