The claimant and the deceased had cohabited for many years. She died intestate, and her mother inherited her estate. His claim had been largely successful, but he now appealed, wanting all the proceeds of sale of the home. The home had been divided according to a declaration of trust, 80 per cent in his favour, but he now said she had not made the contributions anticipated.
Held: This was not an accounting situation but one of set-off, each obligation being enforceable immediately, subject, in the event of a cross-claim, to a right of set-off in the party against whom the obligation is sought to be enforced. The payments had been made from a joint account from which either could draw, and this operated as a waiver against the claimant: ‘The judge, who saw and heard the claimant give evidence, must have thought that he had made it clear to the deceased that he was not going to enforce any right to reimbursement against her and that she had ordered her affairs accordingly. As between parties living happily together, that is surely enough to establish waiver. It is not appropriate to insist on the formalities of waiver in its application to an informal relationship.’
Judges:
Lord Justice Ward Lord Justice Jacob and Sir Martin Nourse
Citations:
[2004] EWCA Civ 999
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Halesowen Presswork and Assemblies Ltd v Westminster Bank Ltd CA 1971
The relationship of banker and customer was a single relationship the situation was not one of lien. Buckley LJ said: ‘Nor is it a set-off situation, which postulates mutual but independent obligations between the two parties. It is an accounting . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate
Updated: 11 June 2022; Ref: scu.199996
