There is a widespread myth that unmarried couples who live together as if they were husband and wife eventually acquire certain legal rights, similar to those enjoyed by married couples. This is not the case. At a time when relationship breakdown can often be very upsetting the last thing you need is advice from someone who doesn’t specialise in this often quite complex area of law, depending upon the circumstances. That is why you need a specialist to help.
TOLATA stands for The Trusts of Land and Appointment of Trustees Act [1996]. It is a law in England and Wales that regulates the relationship between owners of property and those benefitting from that property who are not legal owners. It is most commonly used to resolve disputes between unmarried cohabiting (or former cohabiting) couples, but can also apply to married couples, other family members, and even business partners. TOLATA allows a court to establish the nature of the relationships and interests of the people involved in a dispute about a property, and to make an order that reflects that reality.
As the type of relationship that the parties must have to the property is that of a “trust”, the Limitation Act 1980 (Section 21) must also be considered as this prescribes the time limits for bringing actions relating to trust property. Ignoring this may mean running out of time to use TOLATA to resolve a dispute.
If the case becomes contentious and requires court intervention, then procedurally, these complex disputes are governed by the Civil Procedure Rules [CPR]. That is why here at Keelys, our Dispute Resolution Team, who deal with the procedural aspects of the CPR on a daily basis, undertake this type of work and NOT our family team who operate within different court jurisdictions. Sometimes, other firms say that they are specialists but often ask their family department to undertake the work, meaning that they are often unfamiliar with the process. We offer specialist litigators.
As TOLATA claims are brought under the CPR, the pre-action conduct and protocols practice direction should be followed. Paragraph 6 sets out the steps required before issuing a claim, including:
- Advising on strengths and weaknesses
- Pre action procedure
- Giving or seeking disclosure of core documents
- Dealing with ADR/mediation
- Issuing the claim
- Litigating the issues
Examples of when may TOLATA be used?
Where there is property that consists of or includes land, and in relation to which a trust has been created on purpose (express) or by implication (implied), TOLATA will be the law that sets out the duties of the trustees and the rights of the beneficiaries. It also provides ways to resolve disagreements between trustees and beneficiaries.
An express trust may, for example, be set up formally by parents to manage the family home for the benefit of their children after their deaths. Another relative may be the trustee. He or she will need to deal with differences of option that the children may have about what to do with the property once they become beneficiaries. If agreement cannot be reached by the children or their relative, TOLATA allows any one of them to approach the court to obtain a fair resolution.
TOLATA will also be the applicable law where, for example, a couple may have lived together for many years in a property they regarded as their family home. The house may have been registered in only one of their names, but both may have contributed to the mortgage payments, household expenses, and improvements to the property. If the relationship later breaks down, a court may recognise that an implied trust had arisen if the couple had a shared intention to regard the house as jointly owned. In such a situation the person in whose name the property is registered will be considered to have held it in trust for his or her ex-partner who has a beneficial interest. TOLATA assists a court to quantify the proportion and value of that interest.
Generally, a beneficiary must bring any claim to recover trust property or against a trustee for breach of trust within six years from the date the right of action accrues, which is usually the date of the breach of trust. However, many factors will vary this general limitation period, including the age of a beneficiary, the type of trust, and the specific actions of a trustee or beneficiary. Professional advice may be needed to assess the exact time limit applicable in any particular case.
What remedies can the court provide?
Sections 14 and 15 TOLATA sets out the court’s powers. The court can declare the nature and extent of a person’s interest in property subject to a trust, as it thinks fit. The court can make orders for sale of trust properties and a distribution of the proceeds pursuant to s.14(2)(a).
The court can also undertake equitable accounting and compensation, where one co-owner has spent money on the property, such as for repairs or mortgage payments, while the other has not contributed. On the other hand, one co-owner might have gained benefits from the property, like rent payments or use of the property through occupation, while the other has not. The court’s role is to find a fair balance between the two co-owners (Murphy v Gooch [2007] EWA Civ 603).
How to issue a claim
A TOLATA claim can be issued under CPR part 7 or 8. In general, TOLATA claims are issued under part 8. Part 8 is appropriate to “seek the court’s decision on a question which is unlikely to involve a substantial dispute of fact” (practice direction 8 – alternative procedures for claims). Part 8 is therefore best for more straightforward claims such as an order for the sale of a property. On the other hand, part 7 is reserved for cases with a substantial dispute of fact. Therefore, it is most appropriate where there is a significant dispute over the existence or extent of a beneficial interest.
Which court should a TOLATA claim be issued in?
Both the county court and high court have jurisdiction to hear TOLATA claims (s23 TOLATA). However, if other equitable relief is sought (alongside or as an alternative to the remedy under TOLATA), the county court has a limit of £350,000. The High Court has unlimited jurisdiction under TOLATA 1996, however, proceedings for a specified sum may not be commenced in the High Court, unless the value of the claim is for more than £100,000.
Alternative dispute resolution
It is important to demonstrate a willingness to engage in alternative dispute resolution (ADR) because civil claims can have strict costs consequences. Since Churchill v Merthyr Tydfil CBC [2023] EWCA Civ 1416, the courts have the power to induce parties to participate in ADR. Sometimes TOLATA claims are adjourned at the first hearing to enable the parties an opportunity to engage in ADR.
Section 14 TOLATA sets out the matters the court will consider:
- the intentions of the person or persons (if any) who created the trust;
- the purposes for which the property subject to the trust is held;
- the welfare of any minor who occupies or might reasonably be expected to occupy any land subject to the trust as his home; and
- the interests of any secured creditor of any beneficiary.
Practical advice for clients to avoid TOLATA claims
As prevention is better than cure, it is good practice for cohabiting couples to sign a declaration of trust when purchasing a property; draw up a cohabitation agreement; and keep a clear financial record of the parties’ contributions to the property. It is vital to get professional advice, using experienced litigators.
Litigation and dispute resolution team
Patrick Farrington
Dispute Resolution and Commercial Litigation | Partner
Experience
Patrick is a Partner with over 30 years’ experience in a broad range of matters, but particularly focusing on dispute resolution and company and commercial work. He has spent all of his career in Staffordshire qualifying as a solicitor in 1990. Patrick became an authorized High Court Enforcement Officer in 2004 and has particular knowledge in the enforcement industry, making him one of only a handful of people in England and Wales to be both a practicing solicitor and HCEO. He was the Managing Partner at his previous firm in Stafford before joining Keelys.
Practice Area
Patrick undertakes a broad range of dispute resolution work with a particular focus on contested trust and probate claims, ( having successfully obtained the specialist ACTAPS qualification) dealing with a range of complex issues involving both small and very large estates and debt collection, given his experience in the debt collection industry as an Enforcement Officer in the High Court. He deals with Landlord and Tenant matters (residential and commercial) and a range of contractual disputes.
Highlights
Contentious Trust and Probate cases
Patrick has acted in many cases, both large and small and too many to mention, taking a pro active and sensitive approach to cases often at times of great stress to those involved and taking pride in giving commercial advice on settlements where appropriate but pursuing cases vigorously on behalf of clients too. Examples include:
- Acted for the executors of an estate worth upwards of £8M in relation to various claims brought against the estate including 1975 Act claims by a partner and former spouse (where the divorce had not been finalised) and conflicting claims by family beneficiaries concerning company shareholdings and other assets including land, property and foreign property. This was also made extremely complex by issues involving abatement of company share legacies and disputes about liability for tax. All claims were ultimately settled after litigation.
- Successfully acted for an executor/beneficiary where at trial the Court ruled in our favour as to the interpretation of two clauses in the will, the meaning of which was disputed and obtained payment of costs from the indemnity insurers of the original firm of solicitors who prepared the will.
- Represented a widow who despite a long marriage (over 45 years) did not receive a beneficial interest in the property by the will of her deceased husband. Applying the principles in White v White and Ilott v Mitson in particular, obtained a settlement based on the letter of claim without recourse to mediation or proceedings.
- Successfully defended a claim to remove my client as an executor following extremely contentious and difficult contrasting claims between executors, resulting in an agreement to appoint a professional executor instead of all existing appointees and resolve various disputes as to the division of the estate assets.
- Successfully challenged a charity beneficiary who stood to receive a seven-figure sum from the deceased’s will but bringing a claim under the Inheritance (Provision for Family and Dependants) Act 1975 on behalf of the daughter of the deceased, resulting in a negotiated settlement.
- Settled a claim by my client against two attorneys who had breached their fiduciary duties and misappropriated monies and on behalf of one of the sons of the deceased, successfully tracing money back into the estate and recovering a six-figure sum, plus a property and costs.
- Acting for an executor beneficiary facing claims against the estate based on allegations of undue influence/ fraudulent calumny and an assertion that the testatrix mother lacked capacity but rejecting those claims and reaching a settlement significantly below the opponent’s expectations.
- Acted for a daughter of the deceased following a claim by two half-brothers (whose existence was unknown to her prior to her father’s death) and successfully recovered all of the assets including the property in dispute for her benefit under The Inheritance (Provision for Family and Dependants) Act 1975;
- Acted on applications for and opposing claims made for an order for sale under s. 14 of TOLATA;
- Successfully applied to the court for an order under Section 116 of the Senior Courts Act for an order appointing a professional administrator in place of a relative of the deceased who had refused to take steps to obtain a grant of representation;
- Entered and removed numerous caveats, entered appearances and “warned off” a number of unmeritorious claimants.
Some examples of other Litigation Work and Debt Recovery
- Acted for a former director of a company who faced injunction proceedings for springboarding, facing accusations of setting up a competing company and being in breach of his fiduciary duty to his previous company and reaching a settlement after proceedings had been commenced.
- Acted for two guarantors of a loan with a high street bank and successfully defending a claim against them;
- Successfully defending a claim for over £250,000 brought by a factoring company against the directors pursuant to their personal guarantees and achieving a result in which the directors paid nothing owing to a defective guarantee agreement;
- Obtained judgment against an airline for a sum approaching six figures and successfully persuaded the control tower at the airport to prevent an aircraft from taking off, impounding the aircraft under High Court enforcement procedures until the debt was paid;
- Previous success in enforcing judgments out of the jurisdiction including Scotland and mainland Europe;
- Acted for many international blue chip “household names” in successfully recovering outstanding debt on bulk instructions received.
Qualifications
Solicitor
Reporting to
Head of Dispute Resolution and Commercial Litigation department: Joanne Davies
Interests
Patrick relaxes by watching and playing most sports, particularly football, cricket and golf and has travelled extensively, once working as a lifeguard in California. He enjoys reading, coin collecting and gardening and was a Councillor for Stafford Borough for twenty years, sixteen of which on the Cabinet and eight and a half years as Leader of the Authority. He has been honoured by being awarded the title of Honorary Alderman for his services to the Borough of Stafford, recognising his huge contribution to the local area.
Liam Owen
Dispute Resolution and Commercial Litigation | Partner
Experience
Liam trained at a specialist litigation firm and has been a litigator for more than 15 years now.
Liam’s reputation is excellent, and he has been recommended by the legal directories on many occasions. He is ranked in the Chambers and Partners High Net Worth Guide 2025 for Private Wealth Disputes in the Midlands.
The Legal 500 has previously quoted a source as saying that Liam “is impressive. He is smart and very thorough. A fighter with a relaxed demeanour, which belies his steel-like approach”, and have used a comment that “Liam Owen is meticulous and extremely thorough. That way he is in the best position to know the strengths and weaknesses of a client’s case at an early stage. He leaves no stone unturned’.
Practice Area
Liam handles civil and commercial disputes, with a particular focus at present on contentious wills, probate and trusts work, although he is well-versed across a fairly broad spectrum of civil and commercial disputes.
Highlights
Examples of Contentious Probate and Related Work
- Acted in High Court litigation for a Defendant to a claim for an order for vacant possession and sale. The dispute settled.
- Acted for the executor of a seven-figure estate in relation to a complex set of issues including possible Beddoe relief, claims threatened against the estate and a possible professional negligence claim against former solicitors. The dispute settled at mediation.
- Is acting for the Claimant (a child of the Deceased) on an Inheritance (Provision for Family and Dependants) Act 1975 claim in the High Court.
- Acted for two beneficiaries of a deceased in relation to a high seven figure trust regarding some potential issues between them and the trustees.
- Represented the estate on the Defence of an Inheritance (Provision for Family and Dependants) Act 1975 claim in the High Court, brought by the deceased’s girlfriend at the time of death. This was a complicated dispute which also required the interests of the minor children of one of the beneficiaries (who passed away shortly after the testator) to be taken into account. The matter resolved on confidential terms at mediation, and the settlement was approved by the court.
- Acted for three of the children of two deceased parents and, after issuing proceedings in the Chancery Division of the High Court, obtained a court order for the rectification of the mother’s codicil.
- Acted for a beneficiary of an estate in circumstances where an unreasonable delay by solicitors in carrying out the deceased’s instructions and drafting a will had meant that the deceased passed away before executing their will. As a result, the proposed beneficiary had missed out on the inheritance the deceased had wanted to give them under the will.
Examples of Commercial Litigation Work
- Acted for the Claimant in a dispute over the equitable shareholdings each of four brothers held in a company, with the dispute culminating in a four day Chancery Division trial in Birmingham in August 2024. Judgment was reserved. Butt v Butt & Ors [2024] EWHC 3222 (Ch)
- Acted for a company in respect of a claim against two former senior employees and another company in respect of alleged: breach of contract; breach of fiduciary duty; breach of confidence; inducement and unlawful means conspiracy and diversion of business. Liam’s client issued proceedings in the King’s Bench Division of the High Court for injunctive relief and damages. The Defendants agreed to provide affidavits. The matter settled on confidential terms at mediation shortly after proceedings were issued.
- Represented the Claimant, a “partworks” publisher, on a complex claim regarding an alleged breach by the Defendant of a joint venture agreement relating to a Reader’s Digest publication. The Claimant pleaded unilateral mistake and rectification, breach of fiduciary duty, and misrepresentation. Morse v Eaglemoss Publications Limited [2013] EWHC 1507.
- Represented a minority shareholder in an engineering company who had been ejected from the company and removed as a director. His case was that the company’s affairs had been conducted in a way which was unfairly prejudicial to his interests. The matter settled on confidential terms, after Liam acted as his client’s advocate at mediation.
- Acted for the Respondents in defending two linked winding up petitions, arising from a dispute based on the management of two dental practices in the West Midlands. The petitions were heard together at a one-day hearing in the Rolls Building. Liam later pursued a breach of contract claim on behalf of a director of the Respondents on the basis that he had a beneficial interest in the dental practices. That claim settled on mutually acceptable terms at mediation.
- Represented the Claimant on a breach of trust claim relating to shares held in several Thai restaurants and pubs from which the Claimant recovered substantial damages following a fully contested 3 day trial. The court accepted that shares in a company were held on trust for the Claimant and that the Defendants had breached that trust.
Construction
Although he does less of it these days, Liam has also previously handled construction disputes, including adjudications under the Scheme.
Examples of Contentious Construction Work
- Successfully acted on a final account adjudication brought by a developer against a construction client, resulting in the developer being ordered to pay an additional sum of £1.4m plus interest to Liam’s client above what it had already paid.
- Successfully defended a £1.1m claim brought through adjudication in relation to purported operational losses and the purported remedying of defects in relation to a luxury hotel. The Referring Party was awarded nothing.
- Defended a multi-million pound construction claim by a local authority arising out of purported breaches of a Framework Agreement. The dispute settled at mediation.
- Successfully applied for summary judgment in relation to a final account adjudication decision, defeating arguments alleging a breach of natural justice on the part of the adjudicator. RGB P&C Limited v Victory House General Partner Limited [2019] EWHC 1188 (TCC).
- Acted successfully on the strike out of a Part 7 claim brought by the developer in the Technology and Construction Court for declarations that an £800,000 sum awarded to Liam’s client by an adjudicator should be returned following the final account. The final account was determined in favour of Liam’s client. The opposing developer discontinued its claim shortly before the strike out application was due to be heard.
Qualifications
Solicitor
Reporting to
Head of Dispute Resolution and Commercial Litigation department: Joanne Davies
Interests
Liam is, along with his son (and his wife when she can be persuaded), a fan of travelling to professional wrestling events, and sporting events generally! He also enjoys fitness training, reading (all sorts of things from biographies to quality fiction to self-improvement, science and history) and travel.
Alison Woodbridge
Dispute Resolution and Commercial Litigation | Solicitor
Experience
Alison is a qualified solicitor with 3 years post qualifying experience having cross qualified from a Chartered Legal Executive with 5 years post qualifying experience.
Alison started her career as a legal secretary before training as a paralegal. She has studied alongside working full time to gain her qualifications showing her hard work and determination to her career progression.
Alison has over 10 years’ experience in dealing with civil litigation matters. Although her experience whilst training was predominantly claimant personal injury and clinical negligence, she has broadened her experience and knowledge into other areas of civil litigation.
Practice Area
Her area of specialism is civil litigation dealing with a variety of legal disputes.
She advises and represents clients across a broad range of contentious matters, from pre-action strategy through to trial with a focus on achieving practical and cost-effective outcomes.
Alison understands the importance of attention to detail and has a calm, solution focused approach. Alison works closely with clients to understand their objectives and help them navigate complex disputes with confidence.
Qualifications
Solicitor
Reporting to
Head of Dispute Resolution and Commercial Litigation department: Joanne Davies
Interests
Alison cherishes time spent with family and friends. She loves entertaining her young son and creating special moments to remember. Alison enjoys attending theatre shows and walking. She is also actively engaged in her local community helping organise and support events that bring people together.
Phone:01543 420057
Email:awoodbridge@keelys.co.uk
