Constructive Trust & Wills UK (2026): Claiming a Share of the Family Home Without a Will

When an unmarried partner dies without a will and the family home is solely in their name, the surviving partner may face eviction or a long legal battle to prove they have any right to it at all. A common intention constructive trust can supply the missing protection — but proving it is hard, costly, and uncertain. Making a will costs far less and achieves the same result immediately.

What Is a Constructive Trust?

A constructive trust is not created by any document — it is imposed by a court of equity to prevent a legal owner from unconscionably denying a beneficial interest to someone who has contributed to the acquisition or improvement of property on the basis of a shared understanding. Unlike an express trust (which must be declared in writing under s53(1)(b) of the Law of Property Act 1925), a constructive trust arises from conduct and does not require any formality.

In the family home context the relevant variety is the common intention constructive trust. It requires:

1. A common intention — shared by both parties — that the non-legal-owner would have a beneficial interest in the property.
2. Detrimental reliance by the claimant on that common intention.

Common intention may be expressed (an actual oral or written agreement, even informally worded) or inferred from the parties’ conduct — most reliably, from direct contributions to the purchase price or to mortgage repayments.

Stack v Dowden [2007] and Jones v Kernott [2011]

The modern framework was established by two Supreme Court decisions that significantly broadened the earlier and more restrictive approach in Lloyds Bank plc v Rosset [1991].

Stack v Dowden [2007] UKHL 17

Ms Stack and Mr Dowden were an unmarried couple who jointly registered a house in their joint names. The purchase was funded primarily by Ms Stack. On separation she claimed a larger share than 50:50. The House of Lords held:

• Where property is registered in joint names, the starting point is equal beneficial ownership (50:50).
• The presumption can be rebutted by evidence of a different common intention, derived fromthe whole course of dealing — including financial contributions, mortgage payments, payment of household expenses, and any statements about ownership.
• On the facts, Ms Stack’s substantially greater financial contribution meant the presumption was rebutted: she was awarded a 65% share.

The decision confirmed that in the domestic context, courts take a holistic view rather than a narrow arithmetical one. Non-financial contributions — childcare, home improvements, domestic labour — form part of the whole course of dealing, though their precise weight is uncertain.

Jones v Kernott [2011] UKSC 53

Jones and Kernott jointly owned a home that they had purchased together. After separating, Kernott effectively disengaged from the property for 14 years while Jones remained and paid all outgoings. The Supreme Court held:

• Common intention can change over time — the concept of an ambulatory constructive trust allows beneficial shares to shift as intentions evolve.
• Where it is clear that parties intended different shares but the evidence does not reveal what those shares were, the court can impute an intention — i.e. decide what the parties would fairly have intended.
• On the facts, Jones was awarded 90% after Kernott’s long disengagement.

The Historic Approach: Lloyds Bank v Rosset [1991]

Before Stack, the leading authority was Lloyds Bank plc v Rosset [1991] 1 AC 107. Lord Bridge set out a two-limb test:

Rosset drew the line firmly: indirect contributions (paying bills, buying food, doing housework) were not enough to infer a beneficial interest under limb 2. Only direct financial contributions to acquisition cost or mortgage counted. Stack and Jones v Kernott softened this for joint ownership cases; for sole-name cases, the post-Stack position on indirect contributions remains less clear, with some lower-court decisions allowing them and academic debate unresolved.

Constructive Trust Claims After Death: The TOLATA Route

When the legal owner of a property dies intestate (without a will), the property vests in the deceased’s personal representatives and passes under the intestacy rules. An unmarried surviving partner receives nothing under intestacy in England and Wales regardless of the length of the relationship.

If the surviving partner believes they have a beneficial interest — because they contributed to the purchase price, paid mortgage instalments, or can point to an express agreement — they must assert that interest by bringing a claim under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). TOLATA gives courts power to:

• Declare the beneficial interests of the parties.
• Order a sale, partition, or postponement of sale.
• Require one beneficiary to account to another for occupation rent if they have had exclusive use.

A TOLATA claim against an estate is expensive and the outcome is uncertain. The personal representatives have a duty to the beneficiaries of the estate (under the will or intestacy) and will typically defend any claim. The survivor must act quickly — the estate may seek to sell the property — and should apply for an interim injunction to prevent disposal of the asset pending the determination of the beneficial interest.

Express Trust vs Constructive Trust: Certainty vs Litigation

A constructive trust is an emergency remedy imposed by law when proper planning was not done. An express trust — created deliberately in a will or a declaration of trust — achieves the same outcome at a fraction of the cost and with certainty.

Practical Steps to Protect Your Partner’s Interest

1. Make a will now. Include a clear gift of the property (or your share of it) to your partner, or set up a life interest trust if you have children from a previous relationship.
2. Review the ownership structure. Sole owners can add a partner to the title at the Land Registry. Joint owners can choose between joint tenancy (passes by survivorship) or tenants in common (each partner’s share forms part of their estate and passes under their will).
3. Execute a declaration of trust. If you are tenants in common, record the beneficial shares in a deed of trust — this prevents later disputes about who owns what percentage.
4. Update pension nominations. Pension death benefits do not pass under the will — they are paid at the trustees’ discretion. Nominate your partner explicitly.
5. Review life insurance. Ensure policies written in trust name the correct beneficiary so proceeds bypass the estate and reach your partner quickly.

Frequently Asked Questions