Bankrupt held property on constructive trust for daughter

Ex-footballer Marcus Bent (Bent) was declared bankrupt in 2019. He had debts in excess of £2 million. The only substantive asset in his estate appeared to be a property (which had been purchased in 2006 for £275,000), the legal title to which was held in his name.

ICCJ Jones refused an order for possession and sale on the basis that the property was held by Bent on trust for his daughter (Ms Bent). The trustees’ appeal was dismissed.

Ms Bent was born in 2004. Bent and his partner, Kelly Clark (Ms C), separated in 2006. Following the separation, Bent purchased the property in 2006, for Ms C and Ms Bent to live in. Bent and Ms C agreed that Bent would hold the property on Trust for Ms Bent (the Agreement).

It was the trustees’ case that the in first instance decision:

1. It was wrong in law to find that a common intention constructive trust could arise where the alleged beneficiary was a minor.
2. The Judge was wrong to find that there was reliance, or detriment suffered, by Bent’s daughter, where the only detriment was suffered by her mother, Ms C. Detriment by proxy was not sufficient to establish a trust.
3. The Judge was wrong to find that there was sufficient detrimental reliance on the part of Ms C.

On appeal, it was found that:

1. Ms Bent was privy to the common intention through the agency of her mother, Ms C. In principle, it is possible for a constructive trust being based upon a common intention to come into existence by means of an agency of this kind. Whether such a common intention constructive trust did come into existence will be depending on a finding of detrimental reliance.
2. It was incorrect to suggest that ICCJ Jones found detrimental reliance on the part of Ms C, which he then applied by proxy to Ms Bent. ICCJ Jones had asked himself the correct question: had Ms Bent relied on the Agreement to her detriment? There was no error of law in finding that she had through the agency of her mother.
3. On the basis of the evidence before him, ICCJ Jones’ conclusion on detriment was reasonable and justified.

The outcome of this matter is a reminder to Office Holders that, where a common intention trust is asserted, they should consider not only the capacity of the beneficiary to enter into the common intention trust, but also the practical operation of the trust, including the agency of others to form a binding trust or agreement.

In reference to the matter of Fox and Bridge v Bent and others [2024] EWHC 2179 (Ch).

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