England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
CHANCERY DIVISION

		Priory Courts 33 Bull Street Birmingham B4 6DS
		28 November 2007

Mr Justice Lewison:

Introduction

1. On 8 December 1997 the late Mr Martin Wallbank and his then wife Susan took a transfer of a dwelling-house at 49 Hilton Road, Featherstone, Staffordshire. They had previously been secure tenants of the property and acquired the freehold, at a discount, under the right to buy scheme. The transfer stated that they were to hold the property as beneficial joint tenants. By the following summer the marriage had irretrievably broken down; and Mrs Wallbank left the matrimonial home. On 31 August 1998 Mrs Wallbank signed a handwritten document in the following terms:

"I Susan Joan Wallbank

Have voluntarily agreed to vacate the above premises and also to forfeit any monies or profit in anyway connected with this property, and by signing this declaration I revoke any rights in the disposal of the above property.

The only exception to this is that my Daughters Jaime and Lynsey Wallbank should receive my half share of the property on its disposal or at the discretion of my husband Martin Harry Wallbank."

2. Mr Wallbank died intestate on 22 May 2005. His two daughters, Jaime and Lynsey, are the only beneficiaries of his estate. They say that the declaration of 31 August 1998 severed the beneficial joint tenancy on which their parents had held the property and also amounted to a declaration of trust of their mother's share in their favour. The result, on this analysis, is that they are entitled to the whole of the beneficial interest in the property. Their mother, now Mrs Susan Price, contests this claim. She says that the declaration of 31 August 1998 should be set aside as having been procured by duress or undue influence exerted by her late husband. The result, on this analysis, is that Mrs Price is entitled to the whole of the beneficial interest in the property by right of survivorship. However, despite the strict legal position, Mrs Price recognises her daughters' "moral claim to receive their father's half share in the property upon his death". She is willing, therefore, after deducting her legal costs from Mr Wallbank's half share, to account for the remainder of that half share to her daughters.
3. Mr William Hansen argued the case for Miss Jaime Wallbank and her sister Lynsey, now Mrs Wallbank-Stubbs; and Mr Glenn Willetts argued the case for Mrs Price.

The facts

4. Mr Wallbank and Mrs Price were married on 6 July 1974. Mrs Price was then 22 years old. Their first daughter, Jaime, was born on 6 November 1977 and their second daughter, Lynsey, on 30 January 1979. Mrs Price was then working as a stylist at a hairdressing salon; and Mr Wallbank was working as a milkman. In the following year Mrs Price bought the hairdressing business and took a lease of the shop.
5. Mrs Price says that Mr Wallbank was demanding and physically abusive to her almost from the start of the marriage. There is little corroboration for her allegations of physical abuse. Mr Tony Humphries ran another hairdressing business in the same building. He knew Mrs Wallbank up to 1988. He says that he was aware that she was being bullied by her husband. He would overhear him shouting and swearing at her. He never saw any physical violence, but he said he often saw bruises on Mrs Price's arms, neck and face which she told him had been caused by her husband. Mr Tony Rea, Mrs Price's brother-in-law, also saw Mr Wallbank verbally abusing Mrs Price, although he too did not witness any physical violence or give evidence of any physical manifestations of violence. Mrs Rea, Mrs Price's sister gave evidence of some instances of hair pulling which took place at some time in the late 1960s and one instance when Mr Wallbank threw his dinner at Mrs Price, but missed. Miss Jaime Wallbank says that she was never a witness to any physical violence or aggressive behaviour from her father towards her mother. Mrs Lynsey Wallbank-Stubbs says the same thing. Both of them, however, agreed that merely because they never witnessed any physical abuse did not mean that no physical abuse actually took place. It was not put to them that they heard physical violence taking place; but Mrs Price, who gave evidence after them, said that they had. This allegation was not in either of her two witness statements. Mr Humphries lost contact with Mrs Price after 1988; and Mr and Mrs Rea emigrated to Canada in the same year. Mr Humphries and Mrs Rea, both of whom gave oral evidence, agreed that they could not speak to events after 1988.
6. There are four incidents in particular to which Mrs Price refers in her first witness statement. The first took place in the summer of 1979. She says that Mr Wallbank had begun hitting her; and that one Friday night he kicked her hard and said that she was stupid and pathetic. She became angry, which only made things worse. Mr Wallbank continued to hit her. On the following Saturday, after work, she says she picked up the children and took them to a womens' refuge in Lea Road that offered sanctuary for abused wives. Mr Wallbank turned up on the following day. He promised that if she returned to him the violence would stop and he would have counselling for his temper. She agreed and went back home on the following day. For a short while she says things improved. Miss Jaime Wallbank was only two at the time; and had no memory of this, if it happened.
7. According to Mrs Price about a year later, on Friday 6 September 1980, the second incident took place. Mr Wallbank told her that he did not love her and that their marriage had been a mistake. He said that he would be going out with a woman friend and that he did not think that he would be coming back home. Mrs Price told him to stay away and leave her and the children in peace. She said that they would be better off without him. At about 3.30 a.m. on the Saturday morning Mr Wallbank returned home and tried to unlock the front door, which Mrs Price had bolted. After he threatened to break down the door, she let him in. He hit her; and she went to bed. He slept downstairs. On the following day he shouted at her and, when she tried to reason with him, he banged her head against the pantry door in the kitchen. Her head was pounding and she took some paracetamol. He continued to be physically and verbally abusive. She took more tablets and tried to keep out of the way. That afternoon he threw his dinner against the wall and continued to shout. She took yet more paracetamol; but he came into the kitchen behind her and tried to push her head into a bucket of boiling water which was on the stove. Some time later that afternoon he grabbed her again, held her against the pantry door and aimed a punch at her. Although he missed, his fist went through the pantry door. She took yet more tablets. Then Mrs Price's sister Jennifer arrived with her boyfriend. Mrs Price collapsed and was admitted to hospital, where her stomach was pumped and she was sent for psychiatric evaluation.
8. Jennifer Rea and her husband Tony Rea confirm that they took Mrs Price to hospital. They do not, however, give independent accounts of the incidents on 7 September; and Mrs Price's witness statement does not allege that they actually witnessed any violence. Nor do they give any evidence about seeing damage to the pantry door. Nor do they say that Mrs Price told them either that her husband had banged her head or that he had tried to push her head into a bucket of boiling water.
9. Some of the medical records of the time have survived. Dr McInnes, a senior house physician records in a letter:

"This 28 year old lady was admitted on the 7^th of September 1980 having [taken] an overdose of eight paracetamol tablets [illegible] she was annoyed with her husband and was feeling under the weather with flu and heavy periods."

10. This explanation of why she took an overdose is not consistent with Mrs Price's account. The medical notes of 7 September recording her history, which Mrs Price agreed must have come from what she told the medical staff, say:

"Took OD in effort to make husband listen to her. Hasn't worked –husband told her she was stupid.

Has had flu this week

Heavy period

Still gone to work

But husband has picked on her all week – always "stupid" and useless. Husband has problems at work….

Usually gets on with husband.

No previous ODs"

11. In her oral evidence Mrs Price said that the headaches were caused by her husband hitting her. However, the doctors found no signs of abnormality. She also said in her oral evidence that when she was admitted to hospital she was not conscious and confused which is one of the reasons why she did not tell the doctors about the abuse. But the notes record that on admission she was "fully conscious and orientated".
12. Mrs Price discharged herself that day. In her witness statement she continues:

"Thereafter we settled into the pattern of the next 18 years. I did my best to bring up the girls whilst trying to earn as much money as possible to keep the family afloat. Martin moved between jobs. The verbal abuse continued as did the hitting and punching. There would be periods when there was less of it and there would be periods when there was more of it. It never in fact went away. I just learned to cope with it."

13. Part of that pattern, according to Mrs Price, was that Mr Wallbank used to make unwanted sexual demands on her. On more than one occasion he insisted that she had sex with other men while he watched. He would make her dress up in stockings and suspenders while he masturbated. He also made her pose for sexually intimate photographs. Mrs Price agreed, however in cross-examination, that suspenders and stockings were her normal form of underwear, because she has a medical condition that makes it impossible for her to wear tights. To that extent, therefore, putting on stockings and suspenders was not dressing up and her account was exaggerated. So far as the surviving photographs were concerned, she said that two of them date from 1986 and the remainder from 1998. There were other photographs but Miss Jaime Wallbank discovered them shortly after her father's death in 2005 and burned them.
14. In early 1983 Mr Roger Price met Mr Wallbank. They had a mutual interest in model aircraft and the two couples soon became friends. The Wallbanks and the Prices saw each other frequently. They went away for weekends together and went on a two week holiday to France. Mr Price said that Mr Wallbank was critical of Mrs Price which upset her. But he never saw any physical abuse and saw no signs of physical abuse. Although Mrs Price began to confide in him she said nothing about any physical abuse at the hands of her husband. Over the course of a friendship that lasted for over fifteen years Mr Price recalled only two occasions on which Mr Wallbank lost his temper with his wife and reduced her to tears; and one other incident which I will deal will in due course.
15. The medical records also show that on 1 January 1984 Mrs Price attended the Accident & Emergency Department of the Royal Hospital, Wolverhampton suffering from a laceration. There are no other details of the injury; and Mrs Price did not refer to it in her first witness statement, even though she compiled it with the aid of the medical records. In her second witness statement she says that Mr Wallbank squeezed her hand over an opened tin of corned beef and that caused the injury. In September of the same year the medical records show that Mrs Price was again complaining of headaches. She was examined by the Registrar who recorded that on examination she "looked well". She underwent a CT brain scan which revealed no abnormalities. There is no record of any physical injury.
16. The medical records show that in October 1990 Mrs Price was again complaining of persistent headaches. She was seen by a consultant physician, who considered that there was no serious pathology, and that the headaches were the result of tension.
17. By March 1990 the hairdressing business was in financial trouble. Mrs Price was adjudicated bankrupt; and Mr Wallbank was also adjudicated bankrupt some time later. In June 1991 their home was repossessed; but they were rehoused after a short while as secure tenants at 49 Hilton Road.
18. The medical records show that Mrs Price went back to the clinic at the hospital in March 1991 again complaining of headaches. She told the physician that she had been in a traffic accident in July 1986 in which she suffered a whiplash injury; and that she had intermittently suffered headaches since then. She noticed pain between two and seven times a week, with the pain being worse when the weather was cold. The diagnosis was that the headaches were related to the whiplash injury and according to the records Mrs Price was "happy to accept this diagnosis." If, as Mrs Price now says, the headaches were caused by physical abuse at the hands of her husband, she had seriously misled her medical advisers.
19. The third specific incident of which Mrs Price gave evidence in her first witness statement took place on 6 May 1994. She and Mr Wallbank were at that time in business together; and at their business premises Mr Wallbank pinned her to the wall with his hands around her throat. She says that this episode was witnessed by Mr Wallbank's mother, who advised her to leave the marriage or else risk facing continuous abuse. Mrs Wallbank senior died two days later. From that time onwards, Mrs Price says that the physical abuse worsened.
20. According to Mrs Price the fourth incident took place in May 1995. Mrs Price had disturbed her husband as he was building a model plane in the unit that they leased. He threw a spanner at her (which missed) and an ashtray (which hit her). She ran out of the unit and went off in her car. Mr Roger Price found her on the motorway. Mr Wallbank then came after her and told her to return with him in his van, which she did. Mr Roger Price said that he had been in the unit when this incident took place. He says that Mrs Price had come in to speak to her husband about a job. He suddenly snapped and began shouting and swearing. He picked up a spanner and threw it at her; but it missed. Then he threw an ashtray which hit her on the leg as she tried to make her way out of the door. Mr Price tried to calm Mr Wallbank down; and then he went to look for Mrs Price. He found her in a lay-by under the motorway. He asked her if she was OK. Then Mr Wallbank arrived in his van and told her to get into it, which she did. No injury was caused by this incident.
21. In 1995 Mrs Price secured a part time job at a nursing home. When that home closed she got a job at New Cross Hospital in February 1996. She began doing training courses at about this time; and she is now a qualified staff nurse. Mr Wallbank hated her working there and wanted her to leave. But she did not.
22. In July 1996 Mrs Price began an affair with Mr Roger Price. Neither Mrs Price nor Mr Price referred to their affair in their first witness statements, although Mrs Price's statement contained two oblique hints. Mr Price's second statement deals only with the position after August 1998. Miss Jaime Wallbank said that it was her belief that the affair began in June 1996. In cross-examination both Mrs Price and Mrs Price accepted that their affair had begun in July 1996. Although in cross-examination, after some thought, Mrs Price said that the affair continued until March or April 1998 when she broke it off after going to Relate, she said in re-examination that she broke it off in March or April 1997. Mr Price said in evidence that she broke it off in May 1997. However, Mrs Price also accepted that she was confronted by her daughter Jaime about the affair in October 1997. She also referred to the meetings with Relate as the partial trigger for a holiday that she and Mr Wallbank took together in the summer of 1998. I find that the affair was indeed continuing until March or April 1998, which is what Mrs Price said in cross-examination. Neither Mrs Price nor Mr Price was frank about the extent or duration of their affair.
23. The medical records show that on 14 July 1997 Mrs Price attended the Accident & Emergency Department of the New Cross Hospital, Wolverhampton suffering from a scald on her left hand. Again she did not refer to this injury in her first witness statement. None of the medical records contain any allegation of physical abuse at the hands of Mr Wallbank. In her second witness statement she says that she was cooking potatoes in the kitchen when Mr Wallbank came in. As she drained them he grabbed her from behind and poured scalding water from the potatoes over her left hand. It was that which caused the scald; and she went to hospital three times in order for the dressings to be changed. Although, as I find, Mrs Price was still conducting her affair with Mr Price at this time, Mr Price said nothing about this injury in his evidence.
24. In October 1997 Mrs Price moved out of the matrimonial home and into accommodation provided at the hospital where she worked. Mrs Rowland was the ward manager at the time. She had known Mrs Price since 1996. Her evidence was that she was aware that Mrs Price was having problems in her marriage, although she gave no evidence about what those problems might have been. She recalls that Mr Wallbank used to call Mrs Price at work frequently and that Mrs Price was frequently in tears after those calls. But she did say that Mrs Price told her that Mr Wallbank was abusive towards her and used bullying tactics. She was given to understand by Mrs Price that her situation was desperate and so it was she who took the unusual step of arranging hospital accommodation. Miss Jaime Wallbank says that the reason why Mrs Price left the matrimonial home was because her father had found out that Mrs Price was having an affair with Mr Price. She says her father was devastated when her mother left. But Mrs Price moved back home for Christmas. She says that the rows continued. It was at that time, she says, that she pushed for them to buy the council house in which they lived, hoping that it would make Mr Wallbank feel more secure. This latter assertion was not challenged in cross-examination. In her second witness statement she said that she moved back in on 5 December 1997, which is only three days before the transfer was signed.
25. As I have said, the transfer of 49 Hilton Road was executed on 8 December 1997. The purchase price was £20,160 against an agreed market value of £36,000, giving a discount of £15,840 as a result of the right to buy scheme. The purchase was financed with the aid of a mortgage to secure a loan made by TSB Bank plc. Both Mr and Mrs Wallbank were liable under the mortgage deed. The loan secured by the mortgage was £20,000. The transfer contained the usual provisions for the repayment of the discount on a sliding scale if the property were sold within three years from the transfer.
26. At about this time Mrs Price took out a loan of £10,000 to fund the purchase of a motorcycle for her husband. She says she did so because she was earning better money than he was. There is no suggestion of any bullying or coercion. They began to plan trips on the bike; and in the summer of 1998 went on a camping holiday in Spain. Mrs Price describes the holiday as a disaster from the start. Mr Wallbank became very depressed and said that they would both be better off dead. He would say this as they were riding on the bike at high speed; and he said that he was going to crash the bike deliberately by riding it into oncoming traffic or riding it off the road. Mrs Price says that she was in constant fear for her life. Photographs of that holiday have survived. They have the appearance of perfectly ordinary holiday snaps. On their return to the UK she told Mr Wallbank that she had no option but to leave him. She moved out on 16 August 1998 and once again moved into hospital accommodation.
27. Mrs Price says that it was between her return from holiday and her moving out on 16 August 1998 that Mr Wallbank took another three explicit Polaroid pictures of her. She says that she agreed to pose for these photographs because he threatened to disclose the explicit photographs that he had taken of her in 1986. This was an allegation that was not contained in her witness statement but which emerged in cross-examination. On 21 August 1998 he telephoned her and asked her to come to the house at 5.00 p.m. to discuss their two daughters. According to Mrs Price he again threatened to publish the photographs if she refused. In her witness statement Mrs Price did not say that she complied with his request to go to the house that day. In her oral evidence Mrs Price said she could not remember whether she did. I find that she did not. The photographs were not in fact disclosed to anyone. On 24 August Mr Wallbank turned up at the hospital and threatened to cause trouble unless Mrs Price saw him. They talked in the car park and agreed to meet at the house on 27 August. However, on the following day Mr Wallbank cancelled the meeting and rearranged the meeting for McDonalds restaurant on Bentley Bridge. They met there on 25 August. There were just the two of them. They talked about the girls and continuing contact for Mrs Price. She told him that she wanted an assurance that he would not put the house up for sale and leave the girls without a roof over their heads while they still needed shelter. According to Mrs Price he seemed quite reticent. She said that she wanted to see the girls. He said that it was a good idea and told her to come to the house on 31 August when the two girls would be there.
28. Mrs Price went to the house on 31 August at about 6.30 p.m. She says that although she was afraid, she went there alone because Mr Wallbank would not have let anyone else into the house. Jaime was not there but Lynsey and her boyfriend, Paul Stubbs, were. They were in the dining room. Lynsey went to make coffee. Mr Wallbank told Mrs Price that she was not being fair to the two girls and said that he had written out wording that would settle the matter. Mrs Price says that she did not understand what he meant but that her only concern was that the property was not sold while the two girls needed shelter. She says that Mr Wallbank handed her a single sheet of paper with two red dots on it and read out words which she wrote at his dictation. He then told her to sign it. Mrs Price says that she was frightened and nervous given that she had left him some two weeks earlier. She also had the threat to disclose the photographs firmly in mind. She signed the paper. Lynsey and her boyfriend were then called in to witness her signature. Mr Wallbank picked up the document. Mrs Price was not given a copy. She says that Lynsey and her boyfriend got up to go and Lynsey kissed her goodbye. She stood up to follow them but Mr Wallbank blocked her attempt to leave. She moved towards the panic alarm and said that she would set if off unless he let her leave. He let her leave and she did so. But before she left Mr Wallbank demanded the return of her wedding ring, which she took off and gave to him. She left the house feeling very scared. The fear described in both Mrs Price's pleaded case and in her witness statement was a fear caused by things that Mr Wallbank had said or done on previous occasions. She did not say that anything he said or did on 31 August itself caused the fear (at least not before she signed the declaration). Her witness statement on this point reads as follows:

"Martin then read out to me and I wrote down on the piece of paper the words which are set out on the document at the heart of this dispute. Martin then told me to sign the same. I was obviously frightened given that I had only left Martin some 14 days earlier. If Martin told me to do something then I did it. If I did not then I would be hit or threatened with being hit. That was the nature of our marriage as it made been from the outset. The threat of disclosing the sexually intimate Polaroid's of me was also still firmly in my mind. I signed the piece of paper."

29. However, in her oral evidence she said that Mr Wallbank had said, in a quiet voice: "remember I've got the photographs" and also threatened to run her over; and that she was so frightened that she would have signed anything just to get out of the house. Mrs Price says that although she herself wrote out the document she did not understand what the words on the paper meant and had no idea what it was that she signed.
30. Mrs Lynsey Wallbank-Stubbs' account of the meeting differs. She recalls that her mother arrived at about 7.30 p.m. She seemed relaxed and Mrs Wallbank-Stubbs offered her coffee. She made some coffee while her parents and Mr Stubbs remained in the front room. Once she had made the coffee she returned to the front room and remained there throughout the meeting. It was clear to Mrs Wallbank-Stubbs that her mother was not coming back and that she had continued her relationship with Mr Price. Mrs Price said that she wanted to leave with nothing. Mr Wallbank said that she would need to write something to that effect and gave her a pen and paper. Mrs Price did not know what to write and Mr Wallbank helped her to compose something, He did not dictate the words she wrote. Mrs Price wrote out the agreement and Mr Wallbank then placed the red seals on it. Her mother and father signed it and their signatures were witnessed by Mrs Wallbank-Stubbs and Mr Stubbs. The meeting lasted about 45 minutes, and she and Mr Stubbs were present throughout. There were no heated discussions or disagreements. She says that no pressure was brought to bear on her mother who was acting voluntarily throughout. Her mother's position throughout was that she did not want to take anything, not even her clothes. Almost immediately after the agreement was signed, Mrs Price left and Mrs Wallbank-Stubbs and Mr Stubbs saw her go. Mr Wallbank and Mrs Price were not left alone together. Mr Stubbs also says that the meeting was calm and that he and Mrs Wallbank-Stubbs were present throughout. He says that he, Mrs Wallbank-Stubbs and Mrs Price left the house together and that Mr Wallbank and Mrs Price were not left alone. Both Mrs Wallbank-Stubbs and Mr Stubbs said that they saw Mrs Price give her wedding ring to Mr Wallbank who put in on the mantelshelf. This latter assertion was not in either of their witness statements, although Mrs Price's account of the handing over of the wedding ring had been pleaded in the Defence.
31. Mrs Price says that she and Mr Wallbank met again twice during the following month. On each occasion he threatened to disclose the photographs. On one occasion on 11 September Mr Wallbank told her that he would give her and Mr Price three months together and that Mr Price was a snake who would leave her for another model when he got bored. This is a telling remark made on 11 September, which is a week before Mr Price left his own matrimonial home. It is a clear pointer to the conclusion that at least one of the reasons why Mrs Price left her own matrimonial home was to pursue her affair with Mr Price. Mr Price said in his evidence that they did not become intimate again until January 1999. I reject that evidence. Mrs Price's own witness statement said that she "resumed a relationship" with Mr Price in September 1998.
32. In the summer of 2002 Mr Wallbank asked for a divorce. The papers were signed and the marriage was dissolved in October 2002. In the course of the divorce Mrs Price confirmed that she was making no claim on Mr Wallbank's pension. She took no property: no household effects or furniture. In short, she left with nothing. There was no further discussion about the property. Mrs Price says that as far as she was concerned she retained her half share in it, although Mr Wallbank continued to service the mortgage alone. However, she was continuing to service the loan for the motorcycle. She says that she regarded this as equivalent to servicing her half of the mortgage. Mr and Mrs Price were married in June 2003.
33. As I have said, Mr Wallbank died intestate on 22 May 2005. Mrs Price attended the funeral where, according to Miss Jaime Wallbank "she played the grieving widow" despite the fact that, by that time, she had married Mr Price.
34. Letters of administration were granted to the Misses Wallbank. Title to the property had not been re-registered and it remained registered in the names of Mr and Mrs Wallbank. When the solicitors for the Misses Wallbank asked Mrs Price to execute a transfer of the property in July 2005 she intimated that she was entitled to a payment for so doing. She took legal advice some time in July or August 2005. Particulars of Claim were issued on 11 April 2007 seeking an order that Mrs Price execute a transfer. By a letter of 23 April 2007 Mrs Price's solicitors raised the defence of undue influence. They said:

"The marriage was an abusive one and our client was told to attend at the property for the purposes of signing an agreement, the words of the agreement were dictated to her by her husband and she was then told to sign he same. At no point did she have any opportunity to obtain legal advice. As you are aware the relationship between husband and wife sets up a rebuttable presumption. We believe that as a matter of law the burden of proof will shift to your clients to establish that our client was not unduly influenced."

Undue influence and duress

35. The first question is whether the declaration of 31 August ought to be set aside on the ground that it was procured by duress or undue influence. This is not the usual case of undue influence where the allegation is that the weaker party placed trust and confidence in the stronger. Rather, this is a case in which the allegation is that Mrs Price was coerced into signing the declaration through fear. The classic source for the principles of undue influence is the decision of the House of Lords in Royal Bank of Scotland plc v Etridge (No 2) [2002] 2 AC 773. So far as relevant to the present case those principle are:

i) The objective of the doctrine of undue influence is to ensure that the influence of one person ("the donee") over another ("the donor") is not abused (¶ 6);

ii) The law will investigate the manner in which the intention to enter into a transaction was secured: "how the intention was produced". If the intention was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or "undue" influence, and hence unacceptable, whenever the consent thus procured ought not fairly to be treated as the expression of a person's free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another, and the manner in which influence may be exercised, vary too widely to permit of any more specific criterion (¶ 7).

iii) Equity identified broadly two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. Today there is much overlap with the principle of duress as this principle has subsequently developed. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage (¶ 8).

iv) The second type of case is typically one where one person places trust and confidence in the other and for that reason there is an imbalance between them. However, the principle is not confined to these cases. It also includes, for instance, cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable. Several expressions have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other. None of these descriptions is perfect. None is all embracing. Each has its proper place (¶ 11).

v) Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case (¶ 13).

vi) Disadvantage to the donor is not a necessary ingredient of undue influence (¶ 12). However, it may have an evidential value, because it is relevant to the questions whether any allegation of abuse of confidence can properly be made, and whether any abuse actually occurred (¶ 104);

vii) If the claimant proves (a) that the donor placed trust and confidence in the donee in relation to the management of the donor's financial affairs, and (b) that the transaction calls out for explanation, the claimant has discharged an evidential burden, which will also enable an inference of undue influence to be drawn, and thus satisfy the legal burden, unless the donee produces evidence to counter the inference which would otherwise be drawn (¶¶ 14, 21 and 156). The same principle would apply where the donor proves that her relationship with the donee was one of subordination to domination or control.

viii) This is simply a question of evidence and proof. At the end of the day, after trial, there will either be proof of undue influence or that proof will fail and it will be found that there is no undue influence. In the former case, whatever the relationship between the parties and however the influence was exerted, there will have been found to have been an actual case of undue influence. In the latter there will be none (¶ 93).

ix) The evidential presumption is to be distinguished sharply from a different form of presumption which arises in some cases. The law has adopted a sternly protective attitude towards certain types of relationship in which one party acquires influence over another who is vulnerable and dependent and where, moreover, substantial gifts by the influenced or vulnerable person are not normally to be expected (¶ 18). Where this special presumption applies, the donee has a positive obligation to justify the impugned transaction. The relation of husband and wife is not one of the relationships give rise to this special presumption. (¶ 19).

x) The sort of conduct that can amount to undue influence includes cases of coercion, domination, victimisation and all the insidious techniques of persuasion (¶ 93); and excessive pressure, emotional blackmail or bullying (¶ 160).

36. In the present case the relationship between Mr Wallbank and Mrs Price had broken down by August 1998. Even during their marriage it cannot be said that Mrs Price reposed trust and confidence in Mr Wallbank in financial matters. It was Mrs Price who pushed for the purchase of the freehold. She had previously run her own business, albeit not with great success. It was she who took out the loan to finance the purchase of the motorcycle. The question in the present case is whether Mr Wallbank bullied Mrs Price into writing and signing the declaration that she wrote on 31 August 1998. In the end, as both counsel recognised, the question comes down to resolving a stark conflict of evidence. The allegation made by Mrs Price is one of sustained physical abuse at the hands of her husband throughout their marriage. That is a serious allegation and must be established by cogent evidence. I do not find the allegation proved. The principal reasons that lead me to this conclusion are:

i) First, there is the complete absence in any of the surviving medical records of any allegation of injury at the hands of Mr Wallbank. Such explanations as there are are to the contrary effect. Thus the headaches are ascribed to tension or to the effect of a whiplash injury in a traffic accident. The history taken at the time of Mrs Price's admission after the overdose of paracetamol says that she usually got on well with her husband and presents the week of being picked on as abnormal. Although Mrs Price attended her GP regularly there is no allegation of physical violence against her husband. Mrs Price gives two reasons for this silence. The first is that she was ashamed that it was happening and did not admit it to anyone. However, her case is also that she was assaulted in the presence of others; including clients at the hairdressing salon, her mother in law and Mr Price. According to Mr Humphries Mrs Price told him about her injuries in the 1970s. These two bodies of evidence are, in my judgment, inconsistent and cannot both be true. The second reason that Mrs Price gives is that she was afraid that if she admitted or asserted that she was being physically abused her children would be taken away from her. But she never sought any advice to see whether that was a reality; and according to her own evidence she went to a womens' refuge in the late 1970s.

ii) Second, with the exception of Mr Humphries, who says that he saw bruises on Mrs Price's arms and neck in the 1970s and 1980s, no one saw any signs of physical abuse. If Mr Humphries really saw what he said he saw it is surprising that none of Mrs Price's family members (including her daughters, sister and brother in law) ever saw the same thing. Nor did Mrs Rowland who is a nurse. Nor did any of the doctors who examined her on many occasions throughout her marriage. Nor did Mr Price with whom she was conducting an intimate affair for well over a year.

iii) Third, even though Mrs Price confided in Mr Price, with whom she began an intimate relationship in July 1996 which was still in being until the spring of 1998, she never told him about any physical abuse. If Mrs Price is truthful in saying that Mr Wallbank deliberately scalded her in July 1997, it is very surprising that she did not tell Mr Price that that had happened.

iv) Fourth, the catalogue of Mr Wallbank's alleged abuse has grown as the case has progressed. Extremely serious allegations (the laceration and the scald) were omitted from both the pleaded case and Mrs Price's first witness statement, even though Mrs Price pleaded and gave evidence about older and less serious incidents. If these incidents really happened it is very surprising that Mrs Price apparently did not recall them or chose not to give evidence about them. Her explanation given in evidence was that she had not documented the whole of her long relationship with Mr Wallbank. I found this an unconvincing explanation. In the first place, to the extent that there is any documentation at all, these incidents are documented in the medical records, which Mrs Price had when preparing her first witness statement. In the second place, it is not a question of documenting the whole of the relationship but recalling the most serious occasions of alleged abuse. By the time of her re-examination Mrs Price was willing to testify of numerous occasions when Mr Wallbank pushed her down the stairs or injured her so badly that she had to go to hospital.

v) Fifth, although Mrs Price left Mr Wallbank at least once she was prepared to try to save the marriage, which is one reason why they went on holiday together in July 1998. If the marriage had been so abusive it is difficult to see why she thought it was worth saving, particularly as by 1998 both her daughters were adults.

vi) Sixth, Mrs Price said that she wanted a divorce, but Mr Wallbank refused to agree. Yet if her allegations of abuse were correct she could have initiated divorce proceedings on the ground of Mr Wallbank's unreasonable behaviour. She did not; and when they were divorced, the ground for divorce was two years' separation and consent.

vii) Seventh, Mrs Price's performance in the witness box did not strike me as that of a person who is easily intimidated or bullied.

37. In short, I find that the allegation of wholesale physical abuse has not been established. I am, however, prepared to find that on one occasion in 1995 Mr Wallbank threw an ashtray at her in the course of an argument at their business premises. I also find that the marriage was tempestuous and that there were frequent verbal arguments between Mr Wallbank and Mrs Price. I find also that Mr Wallbank did frequently ring his wife at work and that she was often in tears after conversations with him. Miss Jaime Wallbank agreed that her parents often argued; but she said that her mother gave as good as she got. Having seen Mrs Price's manner of giving evidence, I accept Miss Wallbank's evidence to that effect. Those arguments may well have been a or even the cause of the breakdown of the marriage. But the final straw was in my judgment the affair that Mrs Price was conducting with Mr Price. It was that which led both of them to leave their respective matrimonial homes in quick succession.
38. I must now deal with the allegations that Mrs Price was in fear of Mr Wallbank both because he had threatened to kill her and also because he had threatened to disclose the photographs. Mrs Price's evidence was that the holiday in July 1998 was a disaster and that it ws on that holiday that Mr Wallbank threatened to kill her. She knew that the marriage was over. Yet she says that after their return from holiday and before she finally left in mid-August she posed for explicit photographs at her husband's request. Why? Her explanation in her oral evidence was that Mr Wallbank blackmailed her with the first set of photographs to pose for some more because she was not going to give him his conjugal rights. None of this was in her witness statements; and she went on to say in her oral evidence that Mr Wallbank had threatened her every single moment since the first set of photographs were taken (in 1986). Again, Mrs Price's evidence in the witness box departed from and very significantly "improved on" the pleaded case and the evidence she had given in writing. In her cross examination she alleged that even at the meeting on 31 August Mr Wallbank said "Remember I've got the photographs" and threatened to run her over. If these explicit threats made at the meeting on 31 August were the cause of the fear that led her to sign the document, it is inexplicable that they were omitted from the pleaded case and from Mrs Price's two witness statements. She never reported the threats to kill to the police or even to Mr Price. She did not bring them up in the divorce. They were not mentioned in her solicitors' letter of 23 April 2007. I found this evidence incredible. I am unable to find that the threats to kill were made either at the meeting on 31 August or on the holiday. I also find that at the meeting on 31 August Mr Wallbank did not threaten to disclose the photographs. What then of the allegation that Mr Wallbank had previously threatened to disclose the photographs? At least Mrs Price has been consistent as regards the bare bones of this allegation since her Defence was served in May 2007. There is also the fact that Mr Wallbank did retain the photographs in his possession until his death. Mr Willetts submitted that Mr Wallbank's retention of the photographs demonstrated the continuing hold that Mr Wallbank had over Mrs Price and that this continued until the day of his death. However, in her first witness statement Mrs Price described the conversation she had had with her husband on 11 September 1998 in which he reminded her not to do anything stupid because of the photographs. Her witness statement continued: "I told him that I wasn't bothered any more, and he calmed down." Mrs Price gave no reason for this apparent volte face between 31 August when she was in such fear as a result of Mr Wallbank's possession of the photographs and his threat to disclose them that she would have signed anything; and her lack of concern only 11 days later. Moreover, Mrs Price said that Mr Wallbank hated her working at the hospital. Yet he did not disclose the photographs to engineer her dismissal. When according to Mrs Price he threatened to disclose the photographs if she did not go to the house on 21 August 1998 the photographs were not disclosed even though she did not go. Instead there was what appears to have been a calm meeting in McDonalds three days later. I cannot but conclude that Mrs Price has embroidered her evidence about these photographs. Her evidence is, to my mind, too unreliable to enable me safely to conclude, even on the balance of probabilities, that the threat to disclose the photographs was made. I find that the allegations of overt acts amounting to coercion are not established.
39. Mr Willetts also put the case is a different way. He said that the relationship between Mr Wallbank and Mrs Price was one of ascendancy and subordination. He said that the transaction was one that called out for explanation and that these two features meant that the burden of proof lay on the claimants to establish positively that the transaction represented Mrs Price's free will. The presumption on which Mr Willetts relies is an evidential presumption only. It is not a legal presumption (such as the law imposes on a fiduciary) on grounds of policy requiring him positively to justify the impugned transaction. It is the combination of a relationship of a particular kind together with a transaction that calls out for explanation that enables the court to draw the inference that undue influence was used to procure the transaction. As Lord Scott of Foscote pointed out in Etridge (¶ 219):

"The presumption of undue influence, whether in a category 2A case, or in a category 2B case, is a rebuttable evidential presumption. It is a presumption which arises if the nature of the relationship between two parties coupled with the nature of the transaction between them is such as justifies, in the absence of any other evidence, an inference that the transaction was procured by the undue influence of one party over the other. This evidential presumption shifts the onus to the dominant party and requires the dominant party, if he is to avoid a finding of undue influence, to adduce some sufficient additional evidence to rebut the presumption. In a case where there has been a full trial, however, the judge must decide on the totality of the evidence before the court whether or not the allegation of undue influence has been proved. In an appropriate case the presumption may carry the complainant home. But it makes no sense to find, on the one hand, that there was no undue influence but, on the other hand, that the presumption applies. If the presumption does, after all the evidence has been heard, still apply, then a finding of undue influence is justified. If, on the other hand, the judge, having heard the evidence, concludes that there was no undue influence, the presumption stands rebutted. A finding of actual undue influence and a finding that there is a presumption of undue influence are not alternatives to one another. The presumption is, I repeat, an evidential presumption. If it applies, and the evidence is not sufficient to rebut it, an allegation of undue influence succeeds."

40. The submission that the relationship was one of ascendancy and subordination was primarily based on the allegations of wholesale physical violence: allegations that I have rejected. Although I have found that the marriage was a tempestuous one, with frequent arguments, it was not suggested that any relationship of dominance and subordination resulted from this alone. The financial matters to which I have referred (Mrs Price pushing for the purchase of the freehold, her running her own business, her taking out of the loan for the motorcycle) do not suggest a relationship of dominance and subordination. Mr Willetts also referred to four matters which, he said illustrated the relationship of dominance and subordination. The first two were allegations of Mrs Price's compliance with Mr Wallbank's sexual demands. The reason that Mrs Price gave in her witness statement for compliance with these demands was that: "Ultimately I just wanted to make him happy". But in any event compliance with a husband's sexual demands (even if unwanted) does not, in my judgment, support a conclusion that a wife subordinates herself to her husband's financial demands. The third was Mrs Price's return to the matrimonial home from her parents' house. Mrs Price said in her witness statement that she returned home because of her fear that Mr Wallbank might hurt the family cat or his daughters. There is no evidence at all that Mr Wallbank was ever physically abusive to his daughters or even that he was verbally abusive to them. It was not even suggested to either of them that he was. The fourth was Mrs Price's return to the matrimonial home at Christmas 1997. But by this time Mrs Price was involved with Mr Price, although she thought that her marriage might be capable of being saved. That in my judgment was her own independent decision. There is also evidence that Mrs Price gave which undermines the allegation that she would simply do whatever Mr Wallbank demanded. She said that he hated her working at the hospital; yet she remained there. Shortly before she moved out of the matrimonial home for the last time in August 1998 she said that Mr Wallbank asked for one more chance. He offered to split the house so that he could stay in one half and she in the other; and he insisted that she should leave her job at the hospital. Mrs Price refused; and indeed says that was "the final push I needed". So some two weeks before the critical meeting Mrs Price had shown herself well able to stand up to her husband. I find that the allegation of a relationship of dominance and subservience has not been established.
41. So far as the events of 31 August are concerned I prefer the evidence of Mrs Wallbank-Stubbs and Mr Stubbs to that of Mrs Price. The context of the meeting was that Mrs Price was concerned about the position of her daughters. She wanted an assurance that Mr Wallbank would not sell the house and leave them without shelter. When Mrs Price arrived at the house on 31 August Mr Wallbank said that she was not being fair to Lynsey and Jaime. So the welfare of the daughters was the prime concern for both parents. Another important part of the context was that Mr Wallbank and Mrs Price were separating; and so far as Mrs Price was concerned their relationship was over. Although the house was their only real asset, the equity value in the house was relatively small: only £1,000. It is true that the market value of the house exceeded the purchase price by the amount of the discount, but the discount was itself subject to the claw-back provisions. At most the value of Mrs Price's share was £8,500 and at worst it was only £500. The fact of the separation also provides the context for a decision on Mrs Price's part to extricate herself not only from the relationship but also from the jointly owned asset. When Mrs Price and Mrs Wallbank were eventually divorced, Mrs Price took nothing; which is what her daughters said her position was in August 1998. I must also take into consideration the allegation made by Mr Wallbank that Mrs Price was not being fair to her daughters. Mrs Price understood this to mean that she was a bad mother for leaving her daughters. This in itself may well have provided a motive for her to wish to benefit them. Looked at objectively it makes little sense for a separating couple to continue to own a house as joint tenants in equity. If they are separating it would be an obvious step to take at least to sever the joint tenancy so as to remove the right of survivorship. The ultimate question on this part of the case is whether "the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act": Allcard v Skinner (1887) 36 Ch 145, 185 approved in Etridge para 22. All in all I do not consider that a transaction by which Mrs Price severed the joint tenancy in equity and conferred relatively modest financial benefits on the two daughters she was leaving behind is one that calls out for explanation.
42. In my judgment the plea of undue influence or duress is not established. If and to the extent that any evidential presumption arose, I find that it has been rebutted. Having heard all the evidence I find that Mrs Price entered into the declaration of her own free will. I should add that in the course of his closing address Mr Hansen submitted that even if undue influence had been established relief should be refused because of Mrs Price's delay in putting forward the allegation. This potentially raised the equitable defences of laches or acquiescence. However, these defences were not pleaded as they should have been. Mr Willetts said, and I accept, that if they had been pleaded, then he might well have led different evidence to combat such a defence. In my judgment the failure to plead this defence has therefore prejudiced Mrs Price. Accordingly, I indicated that I would refuse permission to plead this defence, which I do.

The effect of the declaration

43. What is the effect of the declaration? Mr Hansen submits that the declaration (1) effects a severance of the joint tenancy in equity and (2) amounts to a declaration of trust of Mrs Price's resulting half share and/or is a disposition of that share to her two daughters. Mr Willetts, on the other hand, submits that the declaration did not create any trust; but at best amounted to a conditional release or surrender of the beneficial joint tenancy. There was no severance of the beneficial joint tenancy, which therefore remained in being. In those circumstances Mrs Price is entitled to the entirety of the beneficial interest in the property by right of survivorship.
44. It is common ground that the declaration must be interpreted as a whole. A court should try to give effect to the intention manifested by the words of the document. If there is one interpretation which will produce a valid instrument and another rival interpretation which will make it ineffective the court should, in my judgment, prefer the former interpretation. The document is not couched in the language that Mr Wallbank and Mrs Price can reasonably be supposed to have customarily used. Nor was it drafted by lawyers. It is home made but in a form of legalese. These features must also be borne in mind. Having decided what the declaration was intended to achieve I must next consider whether that objective can be fitted into a structure known to the law. If it can be fitted into a known legal structure, then in my judgment it should be.
45. At the date of the declaration the legal estate was registered in the names of Mr Wallbank and Mrs Price. Plainly they held it as trustees. At the date of the declaration they held it as trustees for themselves as joint tenants in equity. After the declaration the legal estate remained registered in their two names; and that is still the position today, even though Mr Wallbank died three years ago.
46. The declaration is in writing and signed by both Mr Wallbank and Mrs Price. If, therefore, it purports to be a declaration of trust or a disposition of an equitable interest it satisfies the formal requirements of section 53 (1) (b) and (c) of the Law of Property Act 1925. Mr Willetts did not argue to the contrary. The declaration naturally falls into two parts. Although both parts must be considered together, it is convenient for the purposes of exposition to begin with the first part. For ease of reference I set it out again:

"I Susan Joan Wallbank

Have voluntarily agreed to vacate the above premises and also to forfeit any monies or profit in anyway connected with this property, and by signing this declaration I revoke any rights in the disposal of the above property."

47. There are three main advantages that joint ownership of a house might bring to one of the joint owners. The first is to live in it; the second is to derive an income from it, and the third is to sell or dispose of it and realise a profit on it. The first part of the declaration states that Mrs Price had agreed to vacate the property. This is not simply stating the fact that she had left but that she had agreed to leave. Fairly read this seems to me to indicate that Mrs Price was agreeing not to come back. In other words she was giving up her right to live in the property. The second part contains an agreement to forfeit "any monies or profit in anyway connected with this property". The "forfeiture" of "any monies" in any way connected with the property are, on the face of it, very wide words. They would appear to include not only any future entitlement to a share in the proceeds of sale of the property but also any entitlement to a share of occupation rent in the meantime. Although the word "forfeiture" may not have been an entirely appropriately chosen word, its overall import is not in doubt. Fairly read, these words seem to me to indicate that Mrs Price intended to give up all financial interest in the property. Mr Willetts argued that Mrs Price did not agree to forfeit her interest in the property itself; but only any monies or profit connected with it. Given that she did not live in the property and in my judgment had agreed not to do so; and in the circumstances surrounding the making of the declaration there was no real prospect that she ever would live in the property again, it is difficult to see what her practical interest in the property might have been if not a wholly financial one. If, therefore, she agreed to give up any monies or profit connected with the property, it is difficult to see what, in practical terms, remained of her beneficial interest. I do not, therefore, accept Mr Willetts' distinction between Mrs Price's interest in the property itself and her entitlement to "any monies or profits in anyway connected" with it. Mr Willetts next argues that the revocation of "any rights in the disposal of the above property" meant only that Mrs Price was giving up her right to a share in the proceeds of sale if and when the property was sold. Since the property has not yet been sold, the condition precedent to her revocation has not been fulfilled. Thus she retains her beneficial entitlement to the property. However, one of the rights of a joint tenant is to require a sale of the property (or at least have a voice in the decision whether or not to sell). That, in my judgment, is (or is capable of being) a right "in the disposal" of the property. The orthodox way by which one joint tenant confers rights on another joint tenant is not by grant or conveyance but by release. A document which purports to be a disclaimer of an interest in a joint tenancy in equity to which the other joint tenant is party will be construed as a release in order to give it legal effect: Megarry & Wade on Real Property 6^th ed. para 9-102. Fairly read, I conclude that in principle Mrs Price intended to give up her beneficial interest in the property. If the declaration had stopped at that point it would have taken effect as a release in favour of Mr Wallbank. But the legal estate remained vested in both Mr Wallbank and Mrs Price and consequently the release affected the beneficial interest alone.
48. I say "in principle" because the second part of the declaration begins with the words: "The only exception to this…". The exception is that:

"my Daughters Jaime and Lynsey Wallbank should receive my half share of the property on its disposal or at the discretion of my husband Martin Harry Wallbank."

49. A severance of a joint tenancy in equity can be effected by (1) an act of one of the joint tenants operating on his own share (2) by mutual agreement (3) by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. These methods of severance are preserved by section 36 (2) of the Law of Property Act 1925. The essence of a joint tenancy in equity is that each joint tenant holds the whole of the beneficial interest jointly and holds nothing separately. It is therefore a contradiction in terms to describe one of two joint tenants as owning a beneficial half share in the property. In the present case the declaration stated Mrs Price's desire that her daughters should receive her "half share" either on the disposal of the property or at the discretion of Mr Wallbank. There was no temporal limitation of the discretion of Mr Wallbank, except that by necessary implication it was to be exercised in favour of Jaime and Lynsey (if at all) before the property was sold. It could therefore have been exercised immediately. The statement that Mrs Price had a "half share" to be dealt with is, in my judgment, inconsistent with the continuing existence of a joint tenancy in equity. The creation of a "half share" is the inevitable consequence of the severance of a joint tenancy in equity where there are two joint tenants. Since there was no temporal limitation on Mr Wallbank's exercise of discretion, it seems to me that the declaration must be construed as having immediate effect. The declaration was signed not only by Mrs Price but by Mr Wallbank as well. In my judgment it amounts to an agreement between the two joint tenants. I consider therefore that the joint tenancy in equity was severed.
50. The legal estate, it will be recalled, remained vested in Mr Wallbank and Mrs Price. Mr Hansen argued that the overall effect of the declaration was that Mr Wallbank thenceforth held the beneficial interest in the property on trust as to one half for himself and the other half for his daughters. Mr Willetts argued that no trust was created, for two reasons. The first was that the words of the declaration were not definite enough. The statement that the daughters "should" have Mrs Price's half share on a disposal of the property were what are traditionally called "precatory words". It would have been different if the declaration had said that they "will" or "shall" have the half share on a disposal. In my judgment this is an unduly technical approach to the interpretation of a home-made document. In Paul v Constance [1977] 1 WLR 527 Scarman LJ said that a trust would be created where the evidence showed an intention to dispose of a property or a fund so that somebody else to the exclusion of the disponent acquires the beneficial interest in it. No special words are needed. In Paul v Constance itself, the words were "This money is as much yours as mine". In my judgment the statement that the daughters "should" have the half share on a disposal is sufficient.
51. Mr Willetts' second objection was that there was no certainty of object. He pointed out that the second part of the declaration did not address the question: where was the beneficial interest before a disposal and before any exercise of discretion by Mr Wallbank? He argued that either this invalidated the declaration completely as a declaration of trust; or the consequence was that the beneficial interest remained in Mrs Price. Since there had in fact been no disposal and there was no evidence that Mr Wallbank had exercised his discretion in favour of his daughters during his lifetime, Mrs Price remained entitled to her beneficial interest.
52. The result of Mr Hansen's interpretation is that Jaime and Lynsey would have taken an immediate and vested interest in one half of the property. But the difficulty with this interpretation is that it gives no effect to the reference to Mr Wallbank's discretion. Nor does it give effect to the statement that the daughters should receive the half share on the disposal of the property. Mr Hansen suggested that this gap could by filled by concluding that until such time as there was a disposal or an exercise of Mr Wallbank's discretion the daughters were entitled to enjoy the property in specie by living in it. No doubt at the time of the declaration it was in fact contemplated that they would continue to live in the house. But that is not what the declaration says, and an immediate beneficial interest must be created in or evidenced by writing. I am unable to accept that the declaration created an immediately vested interest in the daughters. If, as I think, the correct interpretation is that the daughters' share would not vest until either the property were disposed of or Mr Wallbank exercised a discretion in their favour, what was to happen to the beneficial interest in the meantime? Mr Willetts' argument that it remained in Mrs Price in my judgment gives no effect to the first part of the declaration by which Mrs Price gave up her beneficial interest in the property. In my judgment the gap in the beneficial interest is filled by concluding that in the interim it belonged to Mr Wallbank as a result of the release contained in the first part of the declaration. On his death intestate it passed together with his own half share to his daughters.
53. There are two subsidiary points that Mr Willets made with which I should also deal. The first is that he said that the second part of the declaration could not operate as a declaration of trust because by the first part of the declaration Mrs Price had given up her beneficial interest. Since she had given up her beneficial interest there was nothing of which she could have declared a trust. I reject this argument, because it fails to give effect to the declaration interpreted as a whole. The second part of the declaration was expressly stated to be an exception to the first part. But even if it was right, the effect of the argument would have been that the whole of the beneficial interest was passed to Mr Wallbank by the first part of the declaration; and it would have passed to his daughters in his death intestate. So the result would be the same. The second point was that Mr Willetts submitted that if Mrs Price's objective was to secure a roof over her daughters' heads she failed in that objective because there was no restriction on Mr Wallbank's power of immediate disposal. There are, in my judgment, two answers to this. In the first place since the transfer contained clawback provisions relating to the discount which were the only value then inherent in the property, the practical prospect of an immediate sale was remote. In the second place, Mrs Price remained a joint proprietor of the legal estate, with the result that her concurrence (or an order of the court) would have been required in order for Mr Wallbank to have made title. On any application for an order for sale the court would have had a discretion to refuse to order a sale, if the purpose of the trust were still subsisting.

Result

54. By one route or another, the entirety of the beneficial interest in the property has passed to Miss Jaime Wallbank and Mrs Lynsey Wallbank-Stubbs. Mrs Price must execute such documents as are necessary to transfer legal title to them.