Cameron v Cameron

An express declaration of trust in a transfer is the starting point for determining beneficial ownership. The court should give effect to it unless a recognised vitiating factor, such as mistake, justifies rectification or setting it aside. The party seeking rectification bears the burden of proving the parties’ actual common intention and the precise terms intended.

Where a person’s hand is physically guided in signing a disposition, valid execution requires a positive communication directing another to sign on that person’s behalf. Mere assistance, acquiescence or absence of objection is insufficient.

The claimant, acting as personal representative of his mother’s estate, claimed that a bungalow purchased in the joint names of his mother and the defendant was beneficially owned solely by the mother. He sought rectification of the transfer on the grounds of common or unilateral mistake.

Following the mother’s serious illness, a further transfer was executed shortly before her death. The claimant challenged its validity, alleging lack of valid execution, capacity and undue influence. The central issues were whether the original declaration of trust should be rectified and whether the later transfer validly disposed of the mother’s interest.

1. The claim for rectification of the original transfer failed. The express declaration that the property was held by the mother and defendant as joint tenants was the starting point and could not be displaced without proof of a valid vitiating factor.

2. For common mistake, the claimant had to prove an outward expression of accord that the mother alone should hold the beneficial interest, that both parties intended that position when they signed, that the declaration failed to reflect that intention, and the precise wording intended. The evidence established no such intention. The defendant understood the effect of a joint tenancy, and both parties had signed explanatory documents confirming that choice.

3. The requirements for unilateral mistake were also not established. There was no evidence that the defendant knew of any mistake by the mother and unconscionably took advantage of it.

4. The court rejected reliance on Stack v Dowden and Jones v Kernott to infer a different trust where an express declaration existed and no vitiating factor had been proved. The reasoning in Pankhania v Chandegra confirmed that legal effect had to be given to the express trust.

5. The later transfer was not validly executed. Although the mother’s hand had been held and guided, the evidence did not establish that the transfer had been read to her, that she understood it, or that she communicated agreement to it. Applying by analogy the approach in Barrett v Bem, a positive verbal or non-verbal direction to another person to sign was required. There was no such direction. The transfer was therefore set aside.

6. The defendant nevertheless held the whole beneficial interest by survivorship under the original joint tenancy. The court made no determination concerning alleged dealings with the mother’s bank accounts. Consequential orders and costs were left for agreement or further hearing.