Ashley Peters v Mary Joseph [2026] EWHC 775 (Ch): re-trial ordered in declaration of trust forgery dispute

Introduction

Ashley Peters v Mary Joseph [2026] EWHC 775 (Ch) is a Chancery appeal arising from a family property dispute with wider significance for contentious probate, co-ownership disputes and cases in which the authenticity of historic documents is central to the outcome.

The issue was not simply who occupied the property, but whether the beneficial interest in a right to buy house in Peckham had been held jointly, so that Peter Enulue’s share passed to Mary Joseph by survivorship, or whether a 1997 declaration of trust had validly split the beneficial ownership 99 per cent to Peter and 1 per cent to Ms Joseph, with the consequence that Peter’s share fell into his estate.

Mr Justice Edwin Johnson did not determine that question finally. He held that the Recorder’s forgery conclusion could not safely stand because the later-discovered 2001 correspondence and 2009 emails had not been considered, and because the reasoning did not properly confront the inherent improbability of multiple alleged forgeries. The case was therefore remitted for a fresh trial before a different judge.

Factual background

The property, 1 Cicely Road, London SE15 5HW, was originally occupied by Mary Joseph and Peter Enulue as Southwark tenants in 1996 after the family had been rehoused. They later bought the freehold under the right to buy in March 1997 with the assistance of a mortgage from Cheltenham & Gloucester. The registered title was taken in their joint names. Following Peter’s death in June 2019, Ms Joseph became sole registered proprietor.

Mr Ashley Peters, the claimant and appellant, is one of the four children of Ms Joseph and Peter. Ms Joseph and Peter had married in Nigeria in 1985, had a church wedding in the United Kingdom in 1996, separated in 1998 and divorced in 2002.

Mr Peters’ case was that a declaration of trust dated 3 January 1997 provided that Peter and Ms Joseph held the beneficial interest as tenants in common in unequal shares, 99 per cent to Peter and 1 per cent to Ms Joseph. He also relied on a purchase agreement form bearing the stamp of the conveyancing solicitors, Titus Miranda, which appeared to indicate a purchase as tenants in common and the need for a trust deed.

Mr Peters further relied on a will dated 28 May 2010 by which, he said, Peter left his estate to him. On that footing, Peter’s 99 per cent share in the beneficial interest formed part of the estate and passed under the will. Ms Joseph’s answer was that the declaration of trust and the will were both forgeries and that the beneficial interest had always been held jointly, so that Peter’s share passed to her by survivorship.

After Peter’s death, a dispute developed between mother and son over occupation of the property. That led to the property claim, alongside separate family law proceedings and a separate claim under the Inheritance (Provision for Family and Dependants) Act 1975 brought by Peter’s second wife and their son. By the time of the July 2024 trial before Recorder Eaton Turner, the central issue in the property claim was whether the declaration of trust was genuine. The Recorder concluded that it was not and declared, in substance, that the beneficial interest had been held jointly before Peter’s death.

The appeal then took a different turn. After trial, Mr Peters sought to rely on further documents which he said he had discovered in Peter’s briefcase, on Peter’s computer and through Peter’s brother. The most significant were a 2001 exchange of letters and a series of 2009 emails which, if genuine, appeared to show Ms Joseph acknowledging that her share was only 1 per cent and asking Peter for a greater percentage.

The issues before the court

The appeal raised four principal questions.

First, should the further documents be admitted as fresh evidence on appeal?

Second, could the Recorder’s conclusion that the declaration of trust was forged still stand once that new material, and the wider evidential probabilities, were properly taken into account?

Third, did the collapse of the intended cross-examination procedure at trial amount to such a serious procedural irregularity that the result could not stand?

Fourth, could Mr Peters, for the first time on appeal, argue that even if the parties had originally held the beneficial interest jointly, the joint tenancy had later been severed so that Peter died owning a 50 per cent share?

The court’s reasoning

Fresh evidence

Johnson J approached the fresh evidence application by reference to CPR 52.21(2)(b), the recent guidance in Kieran Corrigan & Co Ltd v Timol [2024] EWCA Civ 1233, and the familiar Ladd v Marshall [1954] 1 WLR 1489 principles, treated as still highly persuasive.

The new material mattered because it went directly to the central factual dispute. The 2001 exchange included a letter attributed to Ms Joseph demanding “a bigger share” of 1 Cicely Road because she deserved more than 1 per cent, and a reply attributed to Peter stating that she did not even deserve the 1 per cent he had given her. The 2009 emails were to similar effect. They included requests for “a bigger percentage” and a reply from Peter saying, “1% is all that you will ever have.”

If genuine, those communications were plainly consistent with the declaration of trust and inconsistent with the case that the 99/1 arrangement had simply been fabricated after the event.

The judge was careful not to decide authenticity on the appeal. Ms Joseph denied sending the emails and challenged the documents as false. Even so, the documents were apparently credible on their face, were plainly capable of having an important influence on the result, and, looking at the matter fairly and in the round, had not been reasonably obtainable for use at trial. The absence of any disclosure order in the property claim was an important feature of that analysis. So too were the unusual circumstances in which the documents were said to have been discovered.

Balancing finality against the need for the court process to reach the right result, Johnson J admitted the further documents.

The Recorder’s forgery conclusion

Once the further documents were admitted, the Recorder’s finding of forgery could not safely stand.

The first difficulty was straightforward. The conclusion had been reached without the 2001 exchange and the 2009 emails. If those documents were genuine, they materially strengthened Mr Peters’ case and materially weakened the suggestion that the declaration of trust had been fabricated. If they were not genuine, that too required proper examination at trial. Either way, the issue could no longer be left on the footing of the Recorder’s earlier findings.

The second difficulty was more structural. Johnson J held that the Recorder had not properly addressed the inherent improbability of serial allegations of forgery. Ms Joseph’s case was not confined to the declaration of trust. It also extended to the purchase agreement form, at least in the form relied upon by Mr Peters, and to the will. Drawing on Aldermore Bank plc v Lynch [2022] EWHC 3050 (Ch), the judge held that in a forgery case the court must test witness evidence against the documents and against the overall probabilities.

Here, the Recorder had effectively treated the declaration of trust as the only issue directly before him. The appeal court held that this was too narrow. If Ms Joseph’s case depended upon several historic documents being false, that wider improbability was part of the evidential picture and had to be weighed.

That did not mean the High Court could simply substitute a finding that the declaration was genuine. Johnson J expressly refused to do that. He had not heard the full trial evidence. More importantly, fairness required that Ms Joseph be given a proper opportunity to challenge the authenticity of the new documents. The appeal court was therefore prepared to set aside the finding, but not to reverse it.

Not every criticism of the Recorder succeeded. A separate complaint about the absence of a Form A restriction on the title did not carry sufficient weight on its own, particularly once it was recognised that the Land Registry practice relied upon post-dated the 1997 purchase. Nor was a broad attempt to re-fight all the Recorder’s credibility findings on appeal enough to justify substituted findings of fact. The decisive points were the later-discovered documents and the failure to grapple properly with inherent probability.

The cross-examination point

Ground 3 failed, although the judge accepted that there had been a serious procedural failure.

Before trial, there had been an order providing for the parties’ cross-examination questions to be lodged in advance and for the court to conduct the questioning. Mr Peters had submitted 94 questions, but they did not reach the Recorder. He was therefore left to cross-examine Ms Joseph himself, without the preparation or process he had been expecting.

Johnson J accepted that this was unfair and irregular. Cross-examination requires preparation, and any litigant in person would have been at a real disadvantage in those circumstances.

Even so, the appeal court held that unfairness alone was not enough. There had to be a material link between the irregularity and the outcome. That had not been shown. The Recorder had later reviewed the missing questions in the permission to appeal judgment and concluded that they would not have altered the result. Johnson J considered that assessment should be respected. The procedural failure did not therefore justify setting aside the decision.

The severance argument

Ground 4 also failed.

Mr Peters sought to argue, for the first time on appeal, that even if the parties had originally held the beneficial interest jointly, later conduct after separation and divorce had severed the joint tenancy so that Peter died owning a 50 per cent share.

Applying Singh v Dass [2019] EWCA Civ 360, Johnson J held that this was not the sort of new point that could properly be raised on appeal. It was not a pure point of law. It would have required a materially different trial, with wider evidence about the parties’ conduct and dealings over time. The Recorder himself had already observed, when refusing permission, that the evidence and arguments at trial would almost certainly have been different had severance been in issue.

Allowing the point to be taken on appeal would therefore have been procedurally unfair to Ms Joseph. The argument was rejected, and the judge also made clear that it could not be revived at the re-trial.

The decision

Permission to appeal was granted on all four grounds. Substantively, the appeal succeeded on the first and second arguments within Ground 1. Ground 2 then did not arise for decision, while Grounds 3 and 4 failed.

Paragraph 1 of the Recorder’s order was set aside. The case was remitted to the County Court at Central London for a re-trial before a different judge on the question whether the declaration of trust was a forgery, with the further documents admitted in evidence and without any severance argument being permitted.

At that re-trial, Mr Peters will be entitled to rely on the further documents, including the 2001 correspondence and the 2009 emails. He will not, however, be permitted to advance the severance argument as an alternative case.

The High Court did not determine the fraud ground because, once the forgery conclusion had been set aside, it was unnecessary to do so.

Conclusion

This is an important decision for anyone dealing with property disputes after death, especially where the dispute sits at the intersection of conveyancing documents, declarations of trust and testamentary arrangements.

First, it shows how vulnerable even a firm factual finding can be where later-discovered documents go directly to the heart of the issue. In a case of alleged forgery, contemporaneous letters and emails may fundamentally alter the evidential picture. Where no disclosure process has taken place, the appeal court may be prepared to prefer accuracy over finality.

Secondly, the decision is a reminder that allegations of forgery must be evaluated as part of the whole factual landscape. A court cannot sensibly assess one disputed document in isolation if the successful party’s case also implies that other historic documents are false. The inherent improbability of serial fabrication is itself part of the evidence.

Thirdly, the judgment illustrates an important appellate discipline. Fresh evidence may reopen the case, but it will not necessarily deliver outright victory. Where authenticity and credibility remain disputed, the more usual consequence is a re-trial rather than a substituted finding.

Fourthly, the case underlines the need to plead and run alternative property arguments at first instance. If severance is to be relied upon, it must ordinarily be put squarely in issue from the outset. It is very unlikely to be welcomed for the first time on appeal.

Finally, the underlying facts carry a practical lesson for clients and solicitors alike. Where a family home is intended to be held other than jointly, or where one party expects their share to pass by will rather than by survivorship, the documentation must be clear, retained and internally consistent. If the beneficial ownership structure is later disputed, the difference between joint tenancy and tenancy in common may determine whether any share in the property ever falls into the estate at all.

Further Reading

• Wills, Estates and Inheritance Disputes
• Cohabiting Couples and Beneficial Interests in the Family Home: Constructive Trusts and Alternatives
• Failing to Advise on Joint Tenancy v Tenancy in Common: Solicitor Negligence Claims

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