James Carroll of Russell-Cooke acted for Dr Kilduff in his successful defence in a property dispute with Mr Ashby.

The case highlighted a complex range of issues involving property law, matrimonial law, the relevance of Power of Attorney's and Wills in determining the ownership of two properties in dispute, being 7B and 68SR.

Issue in dispute

Mr Ashby issued proceedings against Dr. Kilduff in the High Court stating that he remained the sole beneficial owner of 7B, which was a property that Dr. Kilduff had purchased for him. This means that he alleged that although Dr Kilduff was the legal owner, Mr. Ashby was arguing that he, and Dr. Kilduff, was entitled to all of the benefit of the property and in effect Dr Kilduff was holding the property on trust for him. Mr Ashby stated that the sale of 7B had been a sham and that there had been no consideration for the sale i.e. no money had changed hands.

Mr Ashby further stated that Dr Kilduff was not entitled to a half share of SR, being a property in their joint names, and that the property had always been meant to provide an income for him.

During the trial, the Wills of each party were disclosed, in Mr Ashby's Will he made no mention of 7B and stated that on his death his half share of SR was to pass to Dr Kilduff. In Dr Kilduff's Will he gives 7B to Mr Ashby on his death, along with his half share of SR.

Judgment

The Judge found that there was overwhelming evidence to show that the sale of 7B to Dr Kilduff was genuine, although not at arm's length.  The Judge found that Dr Kilduff was not holding the property on trust for Mr Ashby. The Judge found that there had been consideration for the sale, as Dr Kilduff had taken out a mortgage and redeemed Mr Ashby's. Furthermore the contents of the Will's indicated the party's intentions.

With regards to SR, it was found that it was intended that Dr. Kilduff had a half share as the title documents demonstrated.