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Drake v Whipp [1996] 1 FLR 826 Court of Appeal

Mrs Drake and Mr Whipp left their spouses to live together. They purchased a barn with the intention of converting it into a dwelling and living in it. Mrs Drake provided £25,000 (40%) towards the purchase price of £61,00. The remainder was funded by Mr Whipp. The barn was conveyed into Mr Whipp’s name alone and there was no express declaration of trust. The conversion cost £129,000. Mrs Drake contributed £13,000 and Mr Whipp provided the remainder. Both worked on the conversion, he provided 70% to her 30% of labour. Mr Whipp then formed a relationship with another women. Mrs Drake bought an action for an order of sale and division of the proceeds in equal shares. The trial judge held that there was no common intention and therefore applied a resulting trust. However, he allowed the respective contributions to the conversion to be taken into account rather than just the contributions to the purchase price. Consequently, she was entitled to a 19.4% share of the property. She appealed contending that the judge was wrong to take into account the contributions to the conversions under a resulting trust.

Held:

Mrs Drake was entitled to one third of the beneficial interest. The trial judge was wrong to conclude there was no common intention since both parties intended that she would take a share. She assumed it would be equal, however he was of the opinion it would be in proportion to her contribution. There was no requirement that they had to agree on the extent of the share. Once a common intention has been found the court can take into account a wider range of dealings and is not confined to financial contributions.

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