30 July 2021 - Article
In Culliford & Lane v Thorpe, the judge awarded the deceased's long-term same-sex partner 50% of the deceased's property as a result of the 'significant refurbishment work' he had done. The decision should reassure couples who agree to share their assets, but as a word of warning to those without their name on the property register – you may need to pull up your sleeves and get your hands dirty!
When Rodney Culliford was only 5 years old, his parents separated. Rodney and his sister stayed with their mother and Rodney's brother with their father. In later life, he did not see either very often, although he stayed in touch with his sister through Facebook.
In Spring 2010, he met Jocelyn Thorpe online. By October 2010, 'the relationship was serious' – they were a couple. Rodney owned a house in Weston super Mare. Jocelyn had some family money but did not contribute as much financially to the couple's day-to-day living costs. However, in April 2012, Jocelyn's father died and Jocelyn believed that he inherited a share in a Devon property and £80,000 in cash and furniture.
In light of this new found wealth, the couple discussed their finances. They decided to carry out some renovations to both the Weston property and Devon property. Their intention was to let the Weston property and live in Devon (Jocelyn's family agreeing to them converting the top floor into a self-contained flat).
Jocelyn started work on the Weston property in June 2012. The work was significant, removing carpets and laying wooden floors, replacing radiators, installing a new kitchen, etc. Rodney contributed with design ideas, but the 'vast bulk of the work' was done by Jocelyn. The refurbishments increased the value of the Weston property by £30,000.
In April 2014, Jocelyn and his family realised that they had misunderstood his father's will. They entered into a deed of variation formalising what they understood his father to have wanted, namely that Jocelyn received a share in the Devon property.
Rodney had been diagnosed as HIV-positive. He was finding work difficult and, perhaps as an escape, he started using recreational drugs. Neither his brother nor sister knew of his drug taking or HIV-positive diagnosis.
In March 2016, Rodney invited some friends to one of his 'drugs parties'. Jocelyn was at the Devon property that night. When he could not get hold of Rodney by telephone, he returned to Weston super Mare to find Rodney dead. Rodney died without a will. Jocelyn remained in the Weston property. He refused to allow access to Rodney's brother and sister, who were Rodney's personal representatives.
Rodney's brother and sister brought a claim for possession of the Weston property. Jocelyn counterclaimed for a declaration of interest in the property by way of constructive trust and/or proprietary estoppel.
Jocelyn said that on bringing his inherited furniture back from Devon, Rodney and he discussed their future together. Believing that Jocelyn now owned a share of the Devon property, they agreed to pool their property and other resources.
Alternatively, Jocelyn said Rodney assured him that they owned the Weston property together and on Rodney's death, Jocelyn would inherit the Weston property.
Jocelyn said that he would not have done the 'significant refurbishment work' to the Weston property if it had not been for the agreement/assurance.
Rodney's brother and sister 'fiercely challenged' the claim.
The court criticised Jocelyn for making a secret recording of a conversation with Rodney's brother and sister, but otherwise found him to be a 'clear, straightforward, indeed transparent witness'. It found that it could not rely on Rodney's brother's evidence due to 'the lack of contact between him and his brother, the lack of information (especially up-to-date) about his brother's life and also the cultural distance between their lifestyles'. It found that Rodney was closer to his sister but still they had little contact after 2014 and 'most of her information about the deceased [came] from Facebook'.
Rodney's brother and sister made several arguments in defence: that the agreement was founded on a mistake as to the ownership of the Devon property and therefore was void, that the agreement did not give Jocelyn 'immediate property rights', that giving Jocelyn an interest in the Weston property would 'open the floodgates to allow post-mortem evidence of secret agreements between parties to govern property rights', that if Jocelyn had an interest in the Weston property then Rodney must have an interest in the Devon property, and that except in exceptional circumstances an agreement to share beneficial ownership can only occur at the time of purchase.
The court did not accept any of these arguments. It found that the agreement to share their properties, followed by Jocelyn's detrimental reliance, gave rise to a common interest constructive trust of half of the Weston property in favour of Jocelyn.
The court ordered the sale of the Weston property. It held that '[t]hose entitled under the deceased's estate, whether as creditors or beneficiaries, should not have to wait longer than necessary to be paid'. Jocelyn was awarded 50% of the net sale proceeds less half the occupational rent from Rodney's date of death to the date on which Jocelyn gives up possession.
This judgment reinforces the judicial opinion that equity is not contract law and 'the fundamental question is whether in the circumstances it is unconscionable for the estate of the deceased to deny [Jocelyn] a share' in the estate.