Dictionary of TLATA and Inheritance Act Claims (2024)

• Dictionary of TLATA and Inheritance Act Claims 2024
• Copyright
• Foreword to the second edition
• Introduction to the 2024 edition
• Section 1: TLATA
• Ambulatory Trust: Changed Intentions
• Concluded Agreements under TLATA
• Constructive Trust: Overview
• Constructive Trust: Joint vs Sole Name Overview
• Constructive Trust: Express Common Intention
• Constructive Trust: Implied Common Intention
• Constructive Trust: Quantification
• Constructive Trust: Imputation
• Conveyancing File
• Detrimental Reliance
• Engaged Couples
• Equitable Accounting and Compensation: Overview
• Equitable Accounting: Mortgage Instalments
• Equitable Accounting: Occupation Rent
• Equitable Accounting: Repairs and Improvements
• Equity of Exoneration
• Excuse Cases
• Express Declarations of Trust and Conclusive Effect
• First-tier Tribunal (Property Chamber)
• Foreign Properties: Jurisdiction
• Illegality
• Interaction between TLATA and the Matrimonial Causes Act 1973
• Investment Properties
• Joint Tenancy, Tenancy in Common
• Notices
• Orders for Sale in TLATA
• Orders for Sale: Claims by Creditors and Trustees in Bankruptcy
• Orders Permitting a Buy Out of Property by a Beneficiary
• Proprietary Estoppel
• Rescission and Rectification of Express Trusts
• Restrictions
• Resulting Trusts
• Satellite Issues: Bank Accounts, Shares, Chattels
• Section 2 Law of Property (Miscellaneous Provisions) Act 1989
• Severance of a Joint Tenancy
• Stack Presumptions
• TLATA Statutory Framework
• Unjust Enrichment: Overview
• Variation of Equitable Interests
• Section 2: Inheritance Act
• Anti-Avoidance Provisions
• Classes of Applicants
• Compromise
• Costs: Personal Representatives and Conditional Fee Agreements
• Domicile
• Inheritance (Provision for Family and Dependants) Act 1975: Overview
• Interim Provision
• Orders: Periodical Payments, Lump Sum, Transfer of Property, Variation of Settlement
• Proof of Death
• Property Forming Part of the Net Estate
• Reasonable Financial Provision
• Section 3 Factors
• Special Factors
• Time Limits
• Section 3: Civil Procedure (TLATA & I(PFD)A)
• ADR
• Allocation and Tracking
• Arbitration
• Calderbank Offers
• Case Management Conferences
• Costs
• Costs Budgeting and Costs Management
• CPR Part 57: I(PFD)A 1975 Claims
• CPR PD 57AC: Witness Statements
• Default Judgment
• Directions Questionnaires
• Disclosure Rules under CPR Part 31 and CPR PD 57AD
• Early Neutral Evaluation, Chancery FDR and Settlement Conferences
• Enforcement: Execution of Documents
• Expert Evidence
• Issuing Proceedings: High Court or County Court/Business and Property Courts or Family?
• Part 7 or Part 8: How to Commence the Claim
• Part 36 Offers
• Pre-Action Protocols (Procedure)
• Summary Judgment
• Tomlin Orders
• Transparency
• Section 4: Schedule 1
• Child Maintenance (Including Top Up Cases)
• Class of Applicants (Including When a Child May Apply)
• Costs Allowances
• Costs Rules in Schedule 1 and Calderbanks
• Definition of Child
• Enforcement
• Exercise of Schedule 1 Jurisdiction: Relevant Factors
• Expert Evidence in Schedule 1
• Interface between Schedule 1, MCA and TLATA
• Interim Provision
• Jurisdiction to Deal with Child Maintenance
• Lump Sum Orders
• Powers under Schedule 1
• Pre-Action Protocols
• Procedure: Disclosure (Including the ‘Millionaire’s Defence’)
• Procedure: Fast-Track
• Procedure: Standard Procedure
• Settlement of Property
• TLATA and Schedule 1: Joinder and Parallel Proceedings
• Variation
• Section 5: Intervenors
• Case Management in Intervenor Claims
• Costs in Intervenor Claims
• Family Court’s Role in Intervenor Claims
• General Points in Intervenor Claims
• Joinder of Intervening Parties
• Subject Matter of an Intervenor Claim
• CPR Procedural Table

I am deeply flattered to be asked to write the foreword for the second edition of this remarkable book. To be able to summarise, so lucidly, the substantive law of the ownership of real property in 39 pages; of the right to claim against an estate under the 1975 Act in 16 pages; and of child maintenance in 30 pages, is an extraordinary feat.

It is the analysis of the law of property ownership that I find most impressive. It must not be forgotten that such law is fundamentally a creature of common law and equity, each of which are judicial constructs of antiquity. For sure, Parliament has intervened from time to time, but without ever seeking, let alone achieving, a coherent whole. Therefore the system is one of a curious, and often impenetrable, mixture of judicial invention and parliamentary edict. Explaining it has taxed some of the finest academic minds. But it is my opinion that it is unlikely, no matter how complex the case, that legal research needs to go beyond the pages of this book.

It would be churlish of me to criticise. However, I consider it a pity that the title of the book does not make reference to its very important section on child maintenance. In that regard I am gratified at the comprehensive and clear exposition of the principles in play, for some of which I am responsible. It is a pity that the book has gone to press before it was possible to comment on the recent decision of Cobb J in Galbraith-Marten v De Renée [2023] EWFC 253 in which he approves the use of the James v Seymour [2023] EWHC 844 (Fam) formula, whilst cautioning against a blind embrace of it.

On page 26 at note 6 reference is made to the decision of Recorder Allen KC in RA v KS (Interim Order for Sale) [2023] EWFC 102 where he held at [38] that where an interim application for sale is made (whether under section 17 MWPA, section 14 TLATA, or under FPR 20.2(1)(c)(v)), and where the respondent has a proprietary interest and is in occupation, then under section 33(3)(d) FLA 1996, the court can make a variable order suspending the respondent’s right to occupy, but cannot extinguish permanently that right.

This is quite difficult to follow, as the essence of a sale is the permanent (or at least irreversible) conversion of bricks and mortar into money. If correct, this decision would be likely to cause many, if not most, applications for an interim sale to fall at the first fence because such an order would, according to the Recorder, result in the respondent permanently losing his right to occupy. Respectfully: this would be absurd. In my humble opinion, s 33(3)(d) should be construed to allow a permanent termination of the respondent’s rights to occupy if the merits require an order for sale to be made on an interim basis.

On page 79 at note 11 reference is made to a supposed difference of view between me and the rest of the judiciary as to the lawfulness of holding all financial remedy proceedings in private with anonymised judgments being given emblazoned with a rubric threatening contempt of court consequences if the secrecy is breached.

This is not the place for an exposition, again, of my view as to why I am right and everyone else is wrong. It is true that Final Report of the FRC-TIG-Sub-group of 18 May 2023 recommended, contrary to my view, that the usual position should be that parties retain their anonymity. However, the report also stated that such a recommendation could only be adopted if I was wrong. It further stated that it was not offering an opinion as to whether I was right or wrong. Therefore, it is very difficult to understand on what lawful basis the Sub-group made its proposal of continuance of the long-standing convention that proceedings should be held, and judgments published, anonymously. The problem is aggravated by the announcement of the promulgation of the Transparency Reporting Pilot for Financial Remedy Proceedings dated 11 December 2023. This does no more than to adopt the recommendation of the group, leaving standing the circular problem that the recommendation can only lawfully be implemented if it is clearly demonstrated that I am wrong.

A foreword such as this would not be complete without my usual infantile exercise of judicial name-checking. I approached this with a certain amount of trepidation as I have not been nearly as prolific in the fields of TLATA, Inheritance Act, and child maintenance as I have been in mainstream ancillary relief. I should not have worried. I am pleased to report that I am mentioned no fewer than 40 times, and my nearest competitor is Lord Justice Thorpe with 17 mentions, with Lord Justice Moylan way down the field with a mere six mentions. Now that I have retired I shall be interested to see how swiftly my judicial dicta fade into obsolescence. Very quickly, I expect, the half-life of judicial pronouncements being measured in weeks, at most.

The points I have made are of marginal relevance and do not detract one whit from the overall excellence of this book. If ever there was an indispensable constituent of a barrister’s library, then this is it.

The Honourable Sir Nicholas Mostyn

January 2024

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