S2.1 Resulting and Constructive trusts Flashcards
Will the presumption of advancement apply to mothers to children?
Officially the presumption of advancement does not apply to transfers from mother to child.
Many of the cases that say so date back a long time (though there have been some recent cases where transfers have been presumed to be on resulting trust). The presumption arose out of an attitude that fathers have a moral, social and legal responsibility to provide for their children. Though few would doubt that mothers are under a similar moral, social and legal obligation, that legal obligation does not extend to equity. Given the change in social attitudes towards property, family and bringing up children, do you think there is any justifiable basis for not applying the presumption to mother-child transfers? Consider that grandparents have been found to be in loco parentis to the donee where the father was dead and that subsequently the transfer was a gift. A stepfather was found to be in loco parentis by virtue of the loving relationship between him and his stepson (re Paradise Motor Co). On that basis, I think the courts would potentially apply the presumption in cases of single mothers. In re Cameron Lindsay J explained that he felt the presumption ought to apply to transfers from both parents. In Laskar Neuberger LJ discussed the presumption of advancement. Counsel had not argued it and the judge agreed they shouldn’t have – so obviously his comments were strictly obiter. But he said that the presumption would not apply because the daughter was over 18 and financially independent; not because this was a mother-child transfer.
Does this suggest some liberalisation of the view that it only applies to transfers from fathers? If Neuberger LJ didn’t think it could apply to mother-child transfers, why mention it at all?
Re Cameron
Lindsay LJ explained that he thought the presumption of advancement ought to apply to transfers from both parents.
Laskar
Neuberger LJ about the presumptuion
Discussed the presumption of advancement.
Counsel had not argued it, so comments were strictly obiter. But he said the presumption of advancement would not apply because the daughter was 18 and financially independent, not because it was a mother-child transfer.
This might suggest liberalisation. If Neuberger LJ did not think it could apply to mother-children transfers, then why did he mention it?
What intention is usually needed for a resulting trust?
Presumed intention = most likely intention in the circumstances. It is very similar to imputed intention. The difference is a presumed intention only arises where there is no evidence to the contrary.
What intention is required for a constructive trust?
much more wide-ranging and may arise regardless of any intention at all, or they may arise because of the actual or implied intention of all the parties, not just the transferor.
What is the effect of a resulting trust?
On the transfer, the beneficial interest, will result back to the transferor.
When will a presumption of a resulting trust arise?
Where there is a transfer of property, but the transferor’s intentions as to the disposal of the equitable interest are unclear.
OR
There is a presumption of a gift of the beneficial ownership under the presumption of advancement.
What is the traditional approach of the courts in resulting trusts?
Where there is a transfer, the courts:
- Look at the circumstances surrounding the transfer
- decide whether it was a:
- presumption of a resulting trust, or
- presumption of advancement.
- If one of the presumptions applies, the courts will look to see if evidence to rebut
If Presumption of resulting trust: if rebutted, it is an outright gift
If presumption of advancement: if rebutted, it is a resulting trust
What is the more recent approach of the courts (privy council)
Instead of the presumption being the starting point, they should be the last resort.
Look at the intention of the parties first.
It is only in the absence of any effective intention that you then look and apply the relevant presumption of intention and gift
Lord Briggs in
Gany Holdings v Khan
[2018] UKPC
Recent movement away from starting with a presumption and looking to see whether there is evidence to rebut it, to starting with a search for evidence of intention and using presumptions only if there is none.
This is because:
- The historic restrictions on the admissibility of evidence has been removed
- Forensic tools are more readily available.
Marr v Collie [2017] UKPC
Took a similar approach to the Khan case before. But this was in 2017, and the Khan case was in 2018!
When will a resulting trust arise?
(1) Property is transferred from settlor to trustees on an express trust but some or all of the equitable interest in the property is not disposed of.
(2) A voluntary transfer of property from one person to another or into the joint names of the transferor and another.
(3) A person contributes all or part of the purchase price of property and title to that property is put in the name of another or into their joint names.
Vandervell v IRC
Example of where resulting trust because Property is transferred from settlor to trustees on an express trust but some or all of the equitable interest in the property is not disposed of.
Facts: This is the situation where the Royal College of Surgeons granted an option to repurchase the shares, which was granted to trustees, but Vandervell as the settlor had not specified who the beneficiaries of that trust should be, so there was a resulting trust in favour of Vandervell.
Lohia v Lohia [2001]
s60(3) which says that a RT shall not be implied by reason that the property is not expressed to be conveyed for the use or benefit of the grantee:
This case held: that effect of 60(3) is that there cannot be a presumed resulting trust on a voluntary transfer of land.
Criticism:
Why should there be such a large difference between a voluntary transfer of land and a voluntary transfer of any other property?
National Crime Agency v Dong
[2017]
In relation to s60(3)
The judge assumed that there can be the presumption of a resulting trust in the case of land.
He said he had heard very limited submissions but there shouldn’t be a difference between real and personal property and the section was not intended to make any substantive changes to the law.
Really we await a decision of a higher court. But this is the most recent decision.
Where is there a presumption of advancement (a gift) in two situations?
1) transfer from a father to his child or someone to whom he is loco parentis. From father only.
2) transfer from husband to wife
Laskar v Laskar
Alternate presumption of advancement (a gift) in two situations:
- transfer from a father to his child or someone to whom he is in loco parentis; from father only, not from mother. This is because the presumption developed at a time when only fathers were under an equitable obligation to support their children.
- IT APPLIES REGARDLESS OF THE AGE OF THE CHILD.
Applies regardless of the age of the child - will apply where there is a transfer from father to a child who is an adult. That was made clear in the case of Laskar v Laskar, but the presumption is weaker where the transfer is made to a child who is capable of maintaining his/herself.
s 2(1) Law Reform (Miscellaneous Provisions) Act 1970
Alternate presumption of advancement (a gift) in two situations:
transfer from a husband to his wife.
It also applies to engaged couples – only male engaged person to female. This extension is a result of s 2(1) Law Reform (Miscellaneous Provisions) Act 1970 and Mossop v Mossop.
Mossop v Mossop
Alternate presumption of advancement (a gift)
- transfer from a husband to his wife.
- It also applies to engaged couples – only male engaged person to female. This extension is a result of s 2(1) Law Reform (Miscellaneous Provisions) Act 1970 and
Mossop v Mossop [1988] 2 WLR 1255
When does the presumption of advancement apply?
- where outright transfer or in joint names,
- e.g. father puts property into joint names of father and child
- or joint names of husband and wife
Criticism of the presumption of advancement
- Sexist
- unjustifiably limited coverage
There is a section to deal with its abolition: Section 199 Equality Act 2010 – prospective abolition of the presumption of advancement, not yet in force.
Can the presumptions of a resulting trust and of advancement be rebutted by evidence of a contrary intention?
Yes.
They are only presumptions, and can be rebutted by evidence of transferor’s actual intention. Or they don’t even come into play if there is actual intention.
- The courts will look at all the facts and circumstances surrounding the transfer or acquisition of the property, loking for evidence of intention that rebuts the presumption.
Pettitt v Pettitt
(Husband + Wife)
In the context of a house acquired for joint occupation, the presumption of advancement is today considered as an instrument of last resort and is easily rebutted with slight evidence to the contray.
Lord Reid -
“in the absence of evidence to the contray effect, a contributor to the purchase-price will acquire a beneficial interest in the property”.
In the context of the acquisition of land, it is clear that a presumed resulting trust will arise in favour of a contributor to the initial purchase price.
This was reiterated in Gissing v Gissing
McGrath v Wallis
CA
In the context of a house acquired for joint occupation, the presumption of advancement is today considered as an instrument of last resort and is easily rebutted with slight evidence to the contray.
Facts: House was purchased by father and son in the son’s sole name for the occupation of both; the purchase in the son’s name only was to maximise their chances of getting a mortgage loan. CA held: the presumption of advancement was rebutted by evidence that the father had intended to retain an interest in the ownership of the house.