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Bannister v Bannister

[1948] 2 All ER 133

Case summary last updated at 24/02/2020 15:42 by the Oxbridge Notes in-house law team.

Judgement for the case Bannister v Bannister

P transferred two flats to her brother and agreed orally that she should have a right to live in one for the rest of her life. When he tried to evict her, on the grounds that there had been no written trust, as s.53(1)(b) required, the CA held that a constructive trust arose in her favour, which is exempted from the need for writing under s.53(2). This was on the grounds that although D had no fraudulent intent at the time of the transfer and oral undertaking, it would be fraudulent if he were to rely on his strict legal rights. Thus a broader meaning of fraud is used. NB different methodology to Rochefoucauld- that used parol evidence to find an express trust, whereas this uses constructive trust. To find CTs wherever there are express trusts not in writing completely emasculates s.53(1) whose purpose is to force people to put their express trusts in writing! Morons. This is made particularly broad here since there wasn’t even fraud at the time of conveyance. 

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