Lindsay Bisiker v Judith Ann Bisiker & Ors

For an acquisition constructive trust, the court asks on what terms property was transferred to the registered owner. An express agreement is unnecessary: common intention may be inferred from words, conduct and context, including later evidence, although remote or self-serving evidence requires caution. The intention must be sufficiently certain as to the trust, its terms and beneficiaries. A family expectation or moral obligation to share sale proceeds does not itself create a trust.

Capacity is specific to the activity and date. Capacity to sign a complex statement requires understanding of the whole document, its linguistic nuance, relevant recollections and the need to express balanced views. A presumption of capacity may be displaced by evidence sufficient to raise doubt, shifting the evidential burden to the person asserting capacity.

The claimant sought declarations that Moonhills, a property registered in the first defendant’s name but bought and funded by their father, was held on trust for the family or the children, alternatively on resulting trust for the father. She also relied on a statement signed by the father in 2023 and claimed relief following her exclusion from the property.

The first defendant counterclaimed for a declaration of sole beneficial ownership. The trial required determination of beneficial ownership, the father’s capacity to make the 2023 statement, and consequent occupation and remedial issues. The court first addressed ownership and capacity because the remaining issues depended on a finding that a trust existed.

1. Disposition. The court found that Moonhills was purchased for Judith to hold absolutely. It also determined that Jim lacked capacity to make statement 3, signed on 25 May 2023. Issues 2–4 and 6–11 therefore did not arise. Judith was entitled to a declaration that she was the sole beneficial owner; sale-related relief could be considered after judgment.
2. Trust principles. The court adopted the framework in Gany Holdings (PTC) SA v Khan [2018] UKPC 21 and the distinction in Khan v Khan [2025] EWCA Civ 1436. An acquisition constructive trust arises from the terms on which property is transferred. An express agreement is unnecessary; common intention may be inferred from words or conduct at the time of purchase or later. The intention must be sufficiently certain as to the trust, its terms and beneficiaries. A moral or family expectation to distribute sale proceeds does not itself create a trust.
3. Evidence on ownership. The court considered all the evidence, giving appropriate weight to oral testimony and cautioning against an exclusive documentary approach. It applied the guidance in Lavelle v Lavelle [2004] EWCA Civ 223 and Mohammed v Daji [2024] EWCA Civ 1247, and did not apply the approach in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) without qualification. The contemporaneous evidence, tax arrangements, Judith’s occupation, and the will and option were inconsistent with a trust. Later statements were remote, inconsistent and affected by changed circumstances. The presumption of advancement was not rebutted.
4. Capacity. In the absence of evidence of Canadian law, the court proceeded on the basis that it was the same as English law, applying Brownlie v FS Cairo Nile Plaza [2021] UKSC 45. Capacity was activity- and date-specific. Capacity to sign a multi-faceted statement required understanding of the document as a whole, its linguistic nuance, the relevant historical matters and the need to express balanced views. The burden was initially on the party asserting incapacity but shifted when sufficient doubt was raised, following Kicks v Leigh [2014] EWHC 3926. The court adopted the general principles summarised in Fehily v Atkinson [2016] EWHC 3069 (Ch). Dr Shulman’s evidence displaced the presumption of capacity, while Ms Johnson’s contract-focused assessment did not address the actual statement. Lindsay did not discharge the shifted evidential burden.