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Max Lowry
Max Lowry, Advocate
Category: Law
Satisfied Customers: 1457
Experience:  LLB, 10 years post qualification experience
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we are due to go to court next week for an order of possession

Customer Question

we are due to go to court next week for an order of possession to be made on our property
my wife was made bankrupt jan 2012 and she is the only name on the deeds
we have been together for 33 years and although we have always paid everything as 1 person together i am struggling to prove by way of evidence my beneficial interest
Submitted: 3 years ago.
Category: Law
Expert:  Max Lowry replied 3 years ago.
Hi, welcome to the site. My name is ***** ***** I will help you with your question. Could you please tell me if you have submitted any evidence so far to state that you have a beneficial interest in the property? If so, what did you say? Is this the first hearing of the trustee's application? Thanks
Customer: replied 3 years ago.

Hi Max

I have been able to give them bank statements that provide proof from my account for approx 69000 in capital repayments for the last few years

We have always viewed our relationship on a joint basis This is indeed the first court hearing regarding the order for possession and only 15 minutes of court time has been allocated

never experienced this before but doesn't seem long enough for such an important decision

Expert:  Max Lowry replied 3 years ago.
Thanks. When you sent the documents to the solicitors acting for the trustee what was their response? When you say you have always viewed your relationship on a joint basis, what do you exactly mean? Are you saying that you always or at some stage agreed that you would own the beneficial interest jointly?
Customer: replied 3 years ago.

They claim that there is not enough evidence to substantiate my beneficial interest \

When a lot younger my father passed away when i was 23 at the age of 60 and i remember my mum having to deal with probate

at 30 years old i lost my brother who was 40 !

I at that time had a thought that maybe i might not get to old age (both heart related deaths) so felt that anything we owned would be in my wife's name

Obviously our intentions were never to part and i didn't realise that this was a potential problem

as an outline i have been with my wife for over 30 years and although married for only 10,2 grown up children who still live with us

From a legal side i must seem such a fool but i never thought that as i was the only one to have worked throughout our time together and the main contributor to the household i would have some claim on the property

I made an offer of £70k which was rejected for the BI the debt that my wife had was at the time £162

Expert:  Max Lowry replied 3 years ago.
Ok. Thanks. A beneficial interest can arise in certain ways but the onus will be on you to show the Trustee you have a beneficial interest in the property.
The easiest to way to show beneficial interest is if there's something in writing – an agreement (declaration of trust) between you both which demonstrates how a property should be shared. Such a written document will be legally binding unless there is evidence of fraud or mistake or there is a more recent agreement. If there is no express trust then a Court will decide at the hearing on the facts of your case.
There are other ways to show that you have some beneficial interest in the property: -
a) You made direct financial contributions to buying the property, and
b) there was a common intention (you both agreed) that you would have an interest in the property – this can be expressed orally but you must show you acted to your detriment relying upon this – such as spending money on improving the property.
c) A direct financial contribution to the property such as towards the deposit or paid the capital element payment for the mortgage
d) the court can infer a common intention if you made financial contributions but nothing was said between you and your partner.
e) expenditure incurred in improving the property, not limited to just maintenance or even physical labour on substantial renovation work.
f) contributions to the household bills and expenses (indirect financial contribution) – and by paying these, you both agreed that you would share in the beneficial interest
g) payments made into a joint account used to fund the mortgage and household expenses
There is no doubt that this can sound quite confusing - you may better off seeking face to face legal advice on this issue.
Although I have not seen all the Trustee’s evidence or yours it seems harsh to reject all your claim!. You should set out your arguments in a witness statement (in the same format as the Trustee’s statement) including all supporting evidence. You could even allege that as you have been the main contributor to the household it was agreed between you that you would in fact own more than 50% of the BI (if this is what you agreed).
When your statement is ready, serve it on the solicitors acting for the Trustee and send a copy to the Court in readiness for the hearing. You should attend the Court hearing otherwise you risk an Order being made without you being there. I suspect the hearing will be adjourned and listed for a longer time period for a later day. During the interim period you could try to enter into negotiations again to purchase the Trustee’s BI. If it goes to a final hearing, the Court will need to consider all evidence you put forward and decide whether it gives you a BI and how what percentage.
I hope this helps.
Customer: replied 3 years ago.

Thanks Max

Great advice i hope that we get an understanding judge

Kindest Regards


Expert:  Max Lowry replied 3 years ago.
No problem. I should be grateful if you would kindly rate the service you received from me.
Please do let me know how you get on.