Declarations of trust and informal variation

Mark Pawlowski Barrister and Professor Emeritus of Property Law  School of Law University of Greenwich

It is accepted as established law that where the parties execute a trust expressly declaring their respective beneficial interests in property this will be conclusive of the parties’ common intention as at the time of the declaration in the absence of fraud misrepresentation undue influence or mistake permitting a party to rescind or rectify the trust. Does this principle however rule out the possibility of an informal variation of the trust based on later circumstances giving rise to a claim relying on the doctrine of proprietary estoppel? Whilst there is no scope for variation based on a pre-existing equity several recent cases notably Bahia v Sidhu [2022] EWHC 875 (Ch) and Re Iqbal [2024] EWHC 49 (Ch) have indicated a willingness to allow an express declaration of trust to be varied or displaced by the informal mechanism of a proprietary estoppel as a result of matters arising after the...