His Honour continued (p 355):
"In the judgment of Vice-Chancellor Browne-Wilkinson in Grant v Edwards his Lordship identified as two matters to be demonstrated when a party seeks to establish a constructive trust based on actual intention, first, that there was a common intention that both should have a beneficial interest, and secondly, that the claimant acted to his or her detriment on the basis of that common intention.
His Lordship pointed out that proof of such common intention can be direct, as for example, by evidence of express agreement or the making of admissions, or such common intention can be inferred from the making of contributions to the cost of a property, or meeting expenses in maintaining it. That, however, is merely one of the ways, but not the only way, in which the evidentiary basis for inferring a common intention can be laid. As was earlier observed, such conduct may also be of considerable factual importance in establishing an acting to detriment, but once again, in that respect its status is evidentiary and it is not a matter of legal necessity."
28 His Honour also approved of the principles enunciated by the Vice Chancellor in Grant v Edwards [1986] Ch 638, p 657 in the following passage:
"In many cases of the present sort, it is impossible to say whether or not the claimant would have done the acts relied on as a detriment even if she thought she had no interest in the house ... once it has been shown that there was a common intention that the claimant should have an interest in the house, any act done by her to her detriment relating to the joint lives of the parties is, in my judgment, sufficient detriment to qualify. The acts do not have to be inherently referable to the house ¼ The holding out to the claimant that she had a beneficial interest in the house is an act of such a nature as to be part of the inducement to her to do the acts relied on. Accordingly, in the absence of evidence to the contrary, the right inference is that the claimant acted in reliance on such holding out and the burden lies on the legal owner to show that she did not do so: see Greasley v Cooke [1980] 1 WLR 1306."
29 For the plaintiffs it was submitted that the express common intention that they were to have one half of the deceased's estate was established. It was put that this was evidenced by the numerous statements made by the deceased to Mona to that effect, and by the terms of the will of 9 November 2001 of which the plaintiffs were made aware by the deceased at the time, and which they saw for themselves. It was put that the clear implication was that in return, the plaintiffs would continue to look after her.
30 Further, it was submitted that, in the belief that they had such interest in her estate, the plaintiffs, to their detriment, continued to provide services to the deceased, the extent of which increased to meet her needs after the second hip operation in early 2002 whilst recovering at their home, and were adapted to fulfil her requirements over the following years.
31 Reliance was placed on the evidence of Mona and Joseph to the effect that they felt obliged to look after the deceased at their home after the second hip operation and to take special care of her because she had left them half her property to show that the holding out to them of an interest in her estate acted as an inducement to provide the services.
32 Finally, it was submitted that, in the circumstances, it was unconscionable to refuse to recognise the existence of a beneficial interest in the deceased's estate which conduct the court would remedy by the imposition of a constructive trust having regard to the principles in Muschinski v Dodds [1985] HCA 78; (1985) 160 CLR 583 and Baumgartner.
33 The defendant contended that the evidence fell short of proving that the plaintiffs assumed that the deceased was not free to change her will. Support was sought from evidence of Mona's failure to complain to the deceased or to her solicitor upon learning of the existence of another will, and by reference to earlier claims made by the plaintiffs in these proceedings that the will of 20 October 2005 be set aside on the ground of incapacity. Alternatively, it was put that if that assumption was made it was not attributable to the deceased, there being no evidence that she promised not to make a new will.
34 It was also submitted that there was no evidence that the plaintiffs continued assistance was provided in reliance upon, or induced by, the expectation of inheritance, or that the plaintiffs would not have continued to provide it if the will of 9 November 2001 had not been made; the evidence went no further than to show that all times the assistance was provided out of friendship without expectation of gain or reward. In any event, so it was put, the claim that care was intensified after the will lacked support.
35 Furthermore, it was submitted that the plaintiffs did not change their position in any way on the basis of their expectation, and, accordingly, suffered no detriment in continuing to provide care. It was also put that it was not shown that the deceased was aware that they continued to provide care on the faith of her representation.
36 Although the defendant accepted that the deceased in her will represented her intention to leave half her estate to the plaintiffs, it was submitted that neither the case for a constructive trust nor for relief under the doctrine of equitable estoppel had been made out.
37 Much of what was put to the effect that the plaintiffs' claim lacked evidentiary support depended upon the court's rejection of Mona's evidence unless corroborated on the ground she was an unreliable witness. Nevertheless, counsel for the defendant said (T p 114, ll 41-46):
"… In so far as your Honour were to accept all or part of the plaintiffs' evidence, your Honour would be satisfied that they were encouraged and that they did rely. But the cases … are clear that reliance has to be reasonable, it has to have some relationship with the intention of the representor and/or the knowledge of the representor."
Consideration
38 In many cases, and this is one of them, claims of a constructive trust and of equitable estoppel may be indistinguishable where the claimant's expectations and the element of detriment to the claimant will have been defined with reasonable clarity ( Jennings v Rice [2003] 1 P&CR 8, par 45; Grant p 656). Accordingly, I take as applicable to a constructive trust claim the following observations of Lord Justice Robert Walker in Gillett v Holt [2001] Ch 210, p 225:
"… the quality of the relevant assurances may influence the issue of reliance, that reliance and detriment are often intertwined, and that whether there is a distinct need for a 'mutual understanding' may depend on how the other elements are formulated and understood. Moreover the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round."