Beneficial ownership: jurisdictional issues

Where a dispute about the beneficial ownership of a property situated in a foreign jurisdiction arises, the test as to which governing law is applicable to the issues in dispute is which system of law is the arrangement said to give rise to the resulting or constructive trust most closely connected. In Heslop v Heslop and another [2023] EWHC 544 (Ch) conjoined claims were brought by a brother against his sisters to determine the beneficial ownership of a property situated in Jamaica. The claimant had obtained a grant of probate in 2019, but had yet to administer his mother’s estate due to the dispute. The property was purchased by the parties’ late mother in 2008 in the joint names of herself and the second defendant. At trial, the claimant argued that the totality of the purchase monies for the property was paid by his late mother. Consequently, the property was held by his mother and the second defendant for the benefit of his mother alone by virtue of a resulting trust. Alternatively, if the property was held by his late mother and the second defendant as joint tenants, the joint tenancy was severed by his mother in April 2012 with her share being gifted to him and the first defendant. A preliminary issue as to jurisdiction to determine the claim had already been determined. The English court had jurisdiction to administer the trusts of foreign settlements. The jurisdiction was in personam and was exercised against the trustees on whom the foreign trust obligations lay. The test for which system of law governed the issues arising was said to be which system of law the arrangement said to give rise to the resulting trust was most closely connected. Further, as none of the parties asserted that Jamaican law applied, English law would apply by default. On an assessment of the evidence, the High Court found that the second defendant had contributed to the purchase of the property. In 2007, the second defendant had deposited £100,000 into her late mother’s bank account to hold for her as a bare trustee. Without the second defendant’s consent her mother had used some of this money to purchase the property. This explained why the parties’ mother had purchased the property in the name of herself and the property as joint tenants. Yet, the joint tenancy had been severed when in April 2012, the parties’ mother had executed transfers gifting her share of the beneficial interest in the property to the claimant and the first defendant. Elizabeth Dwomoh is a barrister at Lamb Chambers