Resulting Trusts - Presumed Intention Resulting Trusts

Question 1

What are the two types of resulting trust?

Answer 1

1. Automatic resulting trust

2. presumed intention resulting trust

Question 2

What are the two circumstances where a presumed intention resulting trust arises?

Answer 2

1. Voluntary transfer

2. contribution to purchase price

Question 3

What is the presumption that arises in a presumed intention resulting trust

Answer 3

A rebuttable presumption that the owner intended to retain/gain a beneficial interest in the property

Question 4

Which equitable maximum is relevant to presumed intention resulting trusts?

Answer 4

Equity is cynical - no one gives anything away for free

Question 5

What is a voluntary transfer?

Answer 5

Where a person transfers property to another - but receives no consideration in return. (equity presumes the transferor intended to retain a beneficial interest)

Question 6

When does the presumption arise with regards to a voluntary transfer?

Answer 6

1. where there has been no consideration from the transferee

2. Where there is no confirmation from the transferor of who is entitled to the beneficial interest

Question 7

Re Vinogradoff [1935]

Answer 7

Grandmother transferred stock into joint names of her and 4 year old granddaughter. Upon her death, it was held the stock was held on resulting trust in favour of the grandmothers estate.

Question 8

What case to use to show a voluntary transfer (Personalty)

Answer 8

Re Vinogradoff [1935]

Question 9

Law of Property Act 1925, s60(3)

Answer 9

If you don’t confirm that you are transferring the beneficial interest in a property, it doesn’t mean that just for that reason a resulting trust should arise.
It was originally thought that s60(3) meant the presumption did not arise in relation to voluntary transfer of land

Question 10

Hodson v Marks [1971]

Answer 10

Shows the original analysis of LPA 1925 s 60(3) was incorrect. The presumption does arise in relation to land

Question 11

What case shows that the original analysis of LPA 1925 s60(3) was incorrect?

Answer 11

Hodson v Marks [1971]

Question 12

Prest v Petrodel Resources Ltd [2013]

Answer 12

confirms Hodson v Marks - offshore properties were deemed to be held on resulting trust

Question 13

What case shows that in a commercial context a resulting trust will be used

Answer 13

Laskar v Laskar

Question 14

What are the two elements set out in Laskar v Lasker which will be considered when determining the commercial context?

Answer 14

1. the purpose for which the property was purchased

2. The relationship between the parties

Question 15

Dyer v Dyer [1788]

Answer 15

It doesn’t matter who’s name the legal title goes in, if someone else has provided some/all of the purchase money, then a resulting trust will arise in their favour

Question 16

Curley v Parkes [2004]

Answer 16

Shows it must be direct contributions towards the purchase price - subsequent payments cannot give rise to a presumed intention resulting trust

Question 17

What are the three ways the presumption can be rebutted?

Answer 17

1. presumption of advancement
2. evidence
3. loan type scenario

Question 18

What is the presumption of advancement?

Answer 18

That the first presumption (the presumption to retain a beneficial interest) can be rebutted in certain types of relationships - and it will actually be considered to be a gift.

Question 19

What are the two relationship in which the presumption of advancement arises?

Answer 19

Father - Child

Husband - wife

Question 20

Bannett v Bennett (1879)

Answer 20

Shows the presumption of advancement arises between father - child

Question 21

What case law sought to abolish the presumption of advancement between husband - wife?

Answer 21

Equality Act 2010, s198, s199 (never actually brought into force)

Question 22

What case shows the presumption of advances arises between father - child?

Answer 22

Bannett v Bennett (1879)

Question 23

Fowkes v Pascoe [1875]

Answer 23

Shows that evidence can be used to rebut the presumption of a retained beneficial interest

Question 24

What case can be used to show evidence can rebut the presumption of a retained beneficial interest?

Answer 24

Fowkes v Pascoe [1875]

Question 25

Re Gooch (1890)

Answer 25

Specific reason for the transfer. Evidence was used to rebut the presumption advancement so the original presumption applied. The father retained a beneficial interest in the property.

Question 26

McGrath v Wallis [1995]

Answer 26

a declaration showing shares between father + son was evidence to rebut the presumption of advancement and therefore the original presumption applied (father retained beneficial interest)

Question 27

Lavelle v Lavelle [2004]

Answer 27

Transfer was done to avoid paying inheritance tax. Therefore, the evidence was used to rebut the presumption of advancement, meaning the original presumption was still in place (retained beneficial interest)

Question 28

What happens in a loan type scenario?

Answer 28

The original presumption is rebutted, due to the contractual relationship. Remedy for non-payment would fall into contract law

Question 29

Vajpeyi v Yusaf [2003]

Answer 29

claimant gave defendant money to buy a house. Court found this was a loan which the defendant had paid back. No resulting trust - the claimant cannot get their money back twice

Question 30

Re Sharp (A Bankcrupt) [1980]

Answer 30

Money was lent to fund the purchase price of a property - no resulting trust could be found. The intention was the money would be paid back, so this was a loan.