Resulting Trusts

Question 0

Tinsley v Milligan

Answer 0

Automatic resulting trust - where property has been transferred on an express trust that fails the property will be held on RT

Also authority for the impossibility of pleading an illegal purpose to prevent RT

Question 1

Re Vandervell

Answer 1

An essential element of the resulting trust is that an interest in the property has either been transferred to, or created for, the D

Question 2

Westdeutsche Landesbank

Answer 2

Lord-Browne Wilkinson stated that there was no distinction between presumed and automatic RTs and all RTs are presumed: this could be a cogent explanation – the law is simply giving effect to the presumed intention, he said – however, this cannot be so because of const. trusts

Question 3

Vandervell (No.2) - inferred intent

Answer 3

For a trust to have inferred intent and thus be an express trust there must be proof cf. Megarry J
Lord Neuberger - ‘objectively deduced to be the subjective intention’

Question 4

Pettit v Pettit

Answer 4

Proof of one fact can prove another by way of inference to find intention for a RT

Question 5

Air Jamaica

Answer 5

Absence of intent can itself be express, imputed, inferred or presumed

Question 6

Stack v Dowden

Answer 6

Presumption of a RT is not a rule of law but a presumption of intention -

Question 7

Re Gillingham Bus Disaster Fund

Answer 7

Automatic RT - best explanation is an imputed intent, especially as most transferors do not intend to have the money returned but where the trust is cheated in some way so as to impute an intention for RT

Question 8

Westdeutsche Landesbank (rebuttal of presumption)

Answer 8

The D can rebut the presumption of equity is cynical by proving that the property was given on an absolute gift or in some other way so as to receive it beneficially

Question 9

Russell v Scott

Answer 9

Burden of proof being transferred and potentially rebutted in the presumption of intention – NB the presumption of advancement where the transferor has some kind of responsibility for D, which will switch the burden

Question 10

Fowkes v Pascoe

Answer 10

Presumption and rebuttal also applies when C purchases in the name of D - ultimately, however, it will depend on the circumstances of the case e.g. buying through solicitor will be very difficult to rebut the presumption

Question 11

Curley v Parkes

Answer 11

Indirect contribution to purchase price of property will give rise to a presumption of RT provided that it was when the property was acquired

Question 12

Gissing v Gissing

Answer 12

Contributions to day-to-day bills are insufficient for RT hence its limited application and the use of CT in familial situations

Question 13

Grey v Grey

Answer 13

Presumption of advancement to be abolished by s199 of EA 2010 but will probably not make a huge difference in practice

Question 14

Tribe v Tribe - Locus poenitentiae

Answer 14

Withdrawing from the illegal purpose will mean that illegality will no longer stand as a barrier when attempting to rebut a presumption provided that considerable steps haven’t been made to achieve the illegality e.g. forging documents

Question 15

Re Vandervell’s Trusts (No.2)

Answer 15

Automatic RT where A transfers to B and the property has partially or fully been undisposed of, B then holds on trust for A

Question 16

Davis v Richards and Wallington

Answer 16

Where an intention to transfer property absolutely, this should be respected and negate a RT

Question 17

Essery v Cowland

Answer 17

Initial failure of an express trust - must be inter vivos as a testamentary trust will simply fall into residue – must be illegal or impossible to execute, mere frustration is insufficient

Question 18

Hodgson v Marks

Answer 18

An express trust will also fail where the formalities have not been abided by -

Question 19

Vandervell 1

Vandervell 2

Answer 19

Wilberforce preferred imputed intention by operation of law in V1, which is contrary to Br.Wilk in Westedeutsche who said all are presumed
New trust was created for the children, but this is subject to critcism and contrary to HL in V1

Question 20

Re the Trust of the Abbotts Fund

Re Gillingham Bus Disaster Funds

Answer 20

Subsequent failure of a trust - usually RT for the donors as once the purpose has been exhausted, i.e. they both died, there would be no other purpose for that money

Question 21

Re Osoboa

Answer 21

Absolute gifts can be found, which will not see the trust fail, where a settlor leaves the whole of their estate to Bs

Question 22

Re West Sussex Constabulary’s Widows, Children and Benevolent Fund Trusts

Answer 22

Bona vacantia - where property is ownerless, where contractual donors had divested themselves of any interest in the trust property because they had received benefits – this is different to Re Gillingham because it was a contractual relationship not one of trust – mere donors however received the money on RT

Question 23

Barclays Bank v Quistclose Investments

Answer 23

Where money has been transferred for a specific purpose and that purpose fails then T may hold on trust for the settlor -

Question 24

Twinsectra v Yardley

Answer 24

Identified as a Quistclose trust in a RT form, where money has been transferred, of which the transferee is not free to dispose at will, but which must be used for a specific purpose, then the money will go on RT back to the lender

Question 25

R v Clowes (No.2)

Answer 25

Where property has been obliged to be kept separate, this evidence the non-free disposal of property being at play

Question 26

Lipkin Gorman v Karpnale

Answer 26

Unjust enrichment - some have argued for RT to be extended because of this by theory of the absence of intention

Question 27

Westdeutsche

(absence of intention)

Answer 27

The absence of intention theory is wide and has been rejected in W - seems excessively wide and when trying to apply restrictions it is complicated e.g. a contract being void ab initio

Question 28

El Ajou v Dollar Land Holdings

Answer 28

Rescission of a voidable contract in equity – the property will be held not on RT but on CT instead