Presumed RT

Presumed RT

1. Where C has transferred property to D OR paid purchase price of property that was acquired by D

   • PRESUMED C intended D to HOLD property on trust
     • Justification - Equity assumes people don't act altruistically
       • they act with a degree of self interest and expectation of some return
         • they wish to have a beneficial interest in the property received by D.
     • presumption can be rebutted by the transferee
       • show that the transferor did intend the transferee to take the property beneficially.
         • PRESUMPTION OF ADVANCEMENT
           • relationship between the transferor and transferee - transferor bears responsibility for transferee - gift - likely to have been intended
           • can be rebutted by transferor proving no gift was intended
           • ONUS of PROOF
             • Where transferor has shown presumption of RT by est. a transfer of property/contribution to purchase price where transferee has shown no consideration
               • burden - placed on transferee to show gift was intended
             • with presumption of advancement
               • burden - on the transferor to show he intended to have a ben. interest in property

2. VOLUNTARY TRANSFER OF PROPERTY

   • Where C transfer property to D and transfer is for NO consideration - if the property is presumed to be held on RT for the C depends on nature of property
     • LAND
       • Where C voluntarily transfers land to D - assumed there is no presumption of RT - s60(3) LPA
         • reminder to conveyancers that a RT Twont be implied as a conveyance of property doesnt expressly state that the property is for use/benefit of grantee
         • Provision - has no effect on whether or not a RT of land will be presumed where transferor voluntarily conveys to transferee
     • PERSONALTY
       • RT - presumed where personalty (share/money) is voluntarily transferred to D
         • 3 seperate principles that need to be considered - recognised in AORSO v COUTTS
           • 1) If C shows he intended D to take proeprty beneficially - end of matter
             • BUT If C intends property to be held by D on trust for C - property - held on an ET and presumption of RT - irrelevant
           • 2) If C doesnt show he intended D to recieve the property beneficially - there will be a presumped RT in favour of C
             • UNLESS - relationship between C & D is that presumption of advancement is used
           • 3) where presumption of intention to declare a trust is used - D can seek to rebut it by citing evidence of relevant facts and circumstances to show that C didnt intend the property to be held on interest for him and it was meant to be a gift

3. PURCHASE IN NAME OF ANOTHER

   • Where C buys property in name of D- presumed that the property will be held on RT for the claimant
     • Where C has contributed to purchase price thats in D's name - property presumped to be hled on RT in shares proprortionate to contribution
     • presumption can be rebutted by est. that
       • presumption of adcancement applies due to relationship between C & D
       • by D showing evidence that C itnended D to recieve property outright - intended to be gift
         • evidence that is required depends on circumstances of case
           • sometimes will be difficult to rebut
           • sometimes relationship between parties suggests a gift is likely
             • Fowkes v Pascoe
               • evidence shown that a woman had purchased stock in names of herself & grandson
               • evidence by grandson that this had been done as a gift - admissable

4. PRESUMPTION OF ADVANCEMENT

   • Where transferor of property/contributor of purchase price is husband, father (MALE) -presumed gift is intended
     • presumption wont be applied where
       • property has been transferred to a mistress
       • wife purchases property for her husband
       • property has been transferred into joint names of H & W
       • presumption can be rebutted if theres evidence that gift was intended
         • decleration must have been made before, during or immediately after time property was transferred/purchased & form part of transaction
         • decleration made by party after transaction which didnt form part of transaction - can still be admitted to rebut
           • ONLY IF it operates against interest of the person making the declaration
     • its become difficult to defend in general application - discriminatory effect between men and women
       • was abolished by s199 of Equality Act 2010 - but provision isnt in force yet
     • Warren v Gurney
       • Father purchases house and conveyed it to one of his daughters
       • presumption - rebutted by decleration made by father that gift was itnended as he had retained title deeds to property
     • McGrath v Wallis
       • family home conveyed in name of son as father was unemployed - only son was accepted as mortgagor
       • at time of transfer - declaration of trust had been drafted indicated that father was to have 80% beneficial interst and son 20%
       • enough to rebut presumption

5. Presumption & Illegal transfers

   • common form - transfer of property to D to hide it from creditors/ex spouse or tax evasion/benefit fraud
   • maxim - HE WHO COMES TO EQUITY MUST DO SO WITH CLEAN HANDS
     • equity wont assist a person who has acted for illegal purpose
       • but if C isnt required to rely on illegal conduct - can still est. RT
       • public policy - cant plead an illegal purpose
         • doesnt stop presumption of RT of advancement - means that party against who presumption applies wont be able to assert his illegal purpose to rebut presumption
           • Collier v Collier
             • H transfers property to W to hide it from his creditors - presumed he intended to make gift of property to her due to presumption of advancement
             • H cant rebut presumption by citing evidence that his purpose was to hide assets from creditors - illegal purpose
             • if W had transferred property to H to hide it from creditors - presumptio of RT will apply - wont need to rely on her illegality to est. presumption
               • Her H might want to rebut presumption by showing transaction was intended to be illegal purpose - but he cant plead this
         • EXCEPTION
           • Tribe v Tribe
             • evidence of an illegal purpose is admissible if the illegal purpose is never carried out.
             • father illegally transferred shares to his so to hide them from his creditors.
             • once threat had passed - father asked son to return shares. son refused - argued presump. of advancment and father was unable to rebut by pleading his illegal purpose
             • HELD: As creditors hadnt been aware of transfer of shares - none of them had been decieved - illegal purpose hadnt been carried into effect
               • father could be seen to not have done anything illegal - could rely on purpose to rebut presumption
       • presumption of RT will apply despite cliamants involvement in illegal transfer
         • Tinsley v Milligan
           • lesbian lovers - both contributed to purchase of house
           • but it was registered in sole name of T on understanding they would have joint beneficial interest
           • M was seen as a lodger so she could make fraudulent claims for housing benefit - both parties participated in fraud and both benefitted
           • after relationship ended - T said she had sole ownership - M said she had beneficial itnerest and due to nature of relationship RT can be presumed
             • T said M couldnt ask court to enforce trust in her favour - due to her illegal conduct
           • HELD: M succeeded as she didnt need to rely on illegal purposes to do this
             • only way T could rebut this - showing M intended her to have sole title to commit her fraud - T couldnt as she would have pleaded illegal transfer
         • Lowson v Combes
           • L and C both contributed to the purchase price of a house
           • house was conveyed into the name of C alone because they did not want to L's wife to have a claim over it in divorce - illegal
           • L was allowed a B interest in the house because he had contributed to this purchase price; he didn't need to rely on his illegal purpose.