Waller v Waller [1967] 1 WLR 451, ChD
Facts
A married couple made joint contributions to the purchase of a property intended to serve as the matrimonial home, with sole legal title to be held by the husband. As this is a statutory trust, he was obligated not to sell the property without first identifying and appointing a second trustee responsible for consulting the wife as a beneficiary of the trust. The husband attempted to sell the property without undertaking such actions, and so the wife applied to the Court for an interlocutory injunction to prevent her husband from completing the sale of the property.
Issues
Whether the husband could legally sell the property as the owner of sole legal title where the wife is a tenant in common in equity.
Decision/Outcome
The Court held that the injunction would be granted. Had the parties not been married, then the husband would have been deemed a trustee, holding the property on trust which would have prevented him from providing good receipt of the sales proceeds had he not appointed the additional trustee as per the Law of Property Act 1925, s.26(3). The Court held, as per Stamp J, that as the wife was a tenant in common in equity, their marriage should not serve to lessen her legal rights in comparison to had she been a tenant in common in equity not married to the sole legal trustee.
Updated 21 March 2026
This case summary is broadly accurate as a description of the 1967 decision. However, readers should note an important statutory development: section 26(3) of the Law of Property Act 1925, on which the decision rested, was repealed and replaced by the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA 1996). Under TOLATA 1996, trusts of land replaced the old statutory trust for sale, and the relevant provisions governing overreaching, the need for two trustees to give good receipt for capital money, and the rights of beneficiaries are now found in that Act (in particular sections 6, 11, and 14) and in sections 2 and 27 of the Law of Property Act 1925 as amended. The core principle from Waller v Waller — that a sole legal owner holding on trust cannot sell so as to overreach a co-owner’s equitable interest without a second trustee — remains good law under the reformed statutory framework. The case therefore retains doctrinal relevance but should be read alongside TOLATA 1996 rather than solely in the context of the pre-1996 statutory trust for sale regime. Additionally, in the context of matrimonial breakdown, the Matrimonial Causes Act 1973 and the Family Law Act 1996 also provide separate regimes that may be relevant in practice.
