Flashcards
Resulting Trusts
Cards in this deck (14)
- 1Starting point - Westdeutsche v IslingtonLord Browne Wilkinson - Resulting Trust arises in two circumstances
1. Presumed Resulting Trusts - A makes transfer to B, presume person who made transfer wanted resulting trust. - evidential gap, not sure why they transferred money.. Though sometimes know what intention is, not clear on basis i.e. for whose benefit, e.g. buy boat not sure if wnt to buy boat for yourself or on my behalf (Venture case)… Did person making transfer want recipient to have unfettered control of property?
2. Automatic Resulting Trusts - Expresss trust which fails at the outset OR came into existence but purpose has been fulfilled and something is left over (supluss). - No evidential gap. Just not properly planned ahead - inadvertence.
LBW - Seems to have included Quistclose trust.
Cannot recover void contract under resulting trust. - 2Presumed Resulting TrustsA makes transfer to B = presume person tht made transfer wanted there to be a resulting trust BECAUSE there is an evidential gap as to what they wanted to happen with property.
The presumption is wherever there is transfer of property that there should be a resulting trust - look to see how these can be rebutted. - 3Situations where resulting trust ariseMoney transfers - (Seldon v Davidson)
Where money is given to buy property = resulting trust.
(The Venture) - transfer money to purchase boat... evidential gap, don't know why money was given. = resulting trust
(Laskar v Laskar) - Renting property for COMMERCIAL VENSURES. (compare to personal reasons..Jones v Kernott) = resulting trust
(Re Vandervell's Trust No 2) - Option to purchase = resulting trust
Share transfers - Re Vinogradoff - 4When don't resulting trusts arise i.e. rebut presumption of resulting trust. 1. Domestic/Consumer Context - Giving money to purchase a home.Transfers of money for purchase of a house to be shared by a married or unmarried couple (Jones v Kernott) cos want ability to vary interest of the parties = No resulting trust, likely to be held under a constructive trust so courts don't just need to focus on financial contributions but can focus on other factors too… Remember in Lasker there was a resulting trust because they didn't want to live in property, it was just commercial use.
(Re Sharpe) - aunt/newphew
(Adekunle v Ritche) - mother/son
Can even be friends - (Gallarotti v Sebastianelli)
Stack v Dowden - Where given money and that money is used for purchase of a home where GOING TO LIVE = Need intention to live together. - 5When don't resulting trusts arise i.e. rebut presumption of resulting trust. 2. Contractual paymentse.g. supermarket, putting money into bank account (where bank has to give equivalent sum credited to bank account) = no resulting trust
Even if contract cannot be enforced (invalid maybe cos of fraud) - Westdeutche = no resulting trust.
Intentions are determined at the time of the transfer itself. If made contract and it is void, might say want money back as it undermines original intention, but no resulting trust won't help here because don't want to let transferor change their mind AFTER having made the transfer.
Shalson v Russo - Same applies for VOIDABLE. Tricks claimant, fraudster runs off with money. - Voidable contract i.e. once realise victim of fraud, can rescind contract and try recover your money... Reiterates point that resulting trusts (under presumption) is intention from the outset... As long as think it is valid contractual payment, it does not matter about fraudster, there is no resulting trust as can recover other ways such as by rescinding contract... Shows why Quistclose is controversial where tehre was transfer of money for specific purpose butpurpose failed=r - 6When don't resulting trusts arise i.e. rebut presumption of resulting trust. 3. GiftsFowkes v Pascoe - Evidence of gift = case by case basis = no resulting trust, the recipient just keeps the property.
- 7When don't resulting trusts arise i.e. rebut presumption of resulting trust. 4. Presumption of advancementAdvancement (gifts) but don't need evidence, just need a particular type of relationship.
2 factos
1) relationship where presume a gift was intended? - no resulting trust... But
2) Can that presumption of advancement be rebutted... = Back to being a resulting trust
Rebutting presumption of gift = a resulting trust.
1) = Father/Child - this relationship rebuts presumption of resulting trust = no resulting trust... presume fathers are generous and so want child to take money outright (Dyer v Dyer)
compare to Mother/children relationship = Resulting trust DOES arise i.e. not making gift that mothers are more selfish looking after own interest (Bennet v Bennet) - Seems like outdated social norms. Offensive, assumes woman is less likely to be generous, that they have limited resources...
(Close invoice finance) suggested that presumption of advancement should apply to mothers and children as well i.e. no resulting trust. But then.
(Purvis v Purvis 2018 case) - presumption of advancement (gift) do not apply to mother/child relationships = resulting trust. - 8When might there NOT be a resulting trust for mother/child What about husband/wife Unmarried couples?Where the father is not around and there is no bread winner... Someone that stands in position of father = Ex parte Pye presumption of advancement applied (it is a gift) - no resulting trust.
Husband/wifelects patriarchal view of family relationships. if H makes transfer to W, presume that is a gift (no resulting trust) (Tinker v Tinker) but if the W makes transfer to H, no presumption of gift = resulting trust arises. (Abrahams v Trustees)
(Chapman v Jaume) don't apply any presumptions of advancement (gift) where couple is unmarried. Bf making contributions to gf = no presumption of gift, BF had resulting trust. - 9Criticisms of presumption of advancementPettitt v Pettitt - Despite criticisms, presumptions of advancement have not been abolished. They are easily rebutted where there is any evidence that it was not a gift would take you back into realm of resulting trusts e.g. can state a purpose for money = rebut presumption of advancement (if relationship of e.g. H and W) not a gift because put a restriction on it. Would not have control to do whatever they please with money.
EASILY REBUTTED CASE: (Re Gooch)
That actually these presumptions of advancement are in modern times just a last resort - (Gany Holdings v Khan) do actually want to look to see what people wanted to happen in these cases so going to do our best to identify evidence, only rare that would make use of these patriarchal presumptions of advancement. - 10Can presumptions of advancement (gifts) be rebutted? Antoni based on? What did the court try to do?If presumption of advancement can be rebutted, then we return to the presumption of resulting trust.
evidence like the example above that not intending to make a gift, evidence such as restriction rebuts presumption of gift.
However, presumptions will have particular relevance in some situations...
where this is lack of evidence - (Antoni v Antoni) - W wanted to get property back from children, had found a note showing F would regard property as his own a few yrs after already transferring property.
Based on (Pettitt v Petitt) presumptions are irrelevant (i.e. the presumption F makes transfer to children that it is a gift)… Have evidence of resulting trust i.e. a gift but even if didn't have evidence, transfer from 1 person to another that should be a transfer presumed under a resulting trust. i.e. does not take into account that F to Children is presumption of advancement (gift) thus court tried to ignore presumption of advancement.
PC - PofA still applies! F to Child=gift=no resulting trust.To rebut ned further evidence to rebut this presumption for rt to arise. - 11What was the relevance of the note in Antoni v Antoni for the PC? Why was it held that presumption of advancement still existed?Note is not enough because supposed to be looking at INTENTION FROM THE TIME OF TRANSFER ITSELF - NOT GOING TO CHANGE YOUR MIND. So, note could merely have just been evidence that F had forgotten he had made the transfer for the children. Thus presumption of advancement still applies - it is a gift for children and so no resulting trust.
Note wasn't strong enough evidence from the OUTSET!
Still a gift to children, thus wife couldn't recover through a resulting trust.
Seems like presumption of advancement as used as first point of call as not enough evidence to rebut presumption of advancement.
LOOK OUT FOR ANTONI SITUATION IN EXAM! Where settlor dies. Evidence of what you find LATER on does not help! Presumption of advancement would still apply! Looking for evidence at time of transfer itself e.g. if send money with restriction only to spend on gym equipment to wife = resulting trust i.e. rebuts presumption of advancement between Husband and Wife where usually it would be considered no trust and just a gift. - 12Presumption of advancement Not lack of evidence Antoni but instead...Relying on legal purpose!
Tinkler v Tinkler (H to Wife)
Tribe v Tribe (F to Son)
Trying to keep money n resources out of hands of creditors by transferring money to children/partner... Although looks like presumption of advancement would apply (gift) Can they say they were being sneaky so didn't actually intend to be a gift e.g. Father to son, so can they have a resulting trust to get money back?
Patel v Mirza (Lesbian couple) - house in 1 name so other person can claim not got property so to get more money from gov.
Rebut presumption of advancement... Or rebut presumption of resulting trust in 2 cases...
1. Not directly relying on illegal purpose.. other ways to prove to court wasn't relying on illegal purpose, court will still let you make your claim.(Tinsley v Milliagan) - lesbians presumption of resulting trust shd arise based on law... No need to rely on illegal purpose as that was the law at that time.
2. Where illegal purpose hasn't needed to be relied on (e.g. creditors never came for money). So could rebut presumption of advancement to recover. F to son =gift. F =RTnow - 13What does Patel v Mirza recognise/do?Reflects the two above approaches, not directly relying on illegal purpose and not needing to rely on it as needing to be flexible.
As long as no clear public policy reason to prevent someone going to court to make their case, they should be able to give evidence to the court even if have bad motives. Need cleat public policy reason for court to prevent someone trying to rebut presumption of advancement to avoid any benefit under a resulting trust.
Slightly more flexible in that could be bad motives but can still rebut presumption if provide evidence. - 14Abolish presumption of advancement? Explanation?s199 EA 2010 WOULD HAVE ABOLISHED, but gov never enacted provision... WOULD HAVE ABOLISHED THE WHOLE OF PRESUMPTIONS.
Outdated stance still applies.
Reason J Glister 'How not to Abolish the Presumption of Advancement' 2013... Presumptions are still relevant in some circumstances where we have evidential gaps. Would have made sense to just be a bit more equal amongst mothers/fathers and husbands/wife... Act wasn't trying to do that but instead get rid of PRESUMPTIONS ALTOGHER.
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- Flashcards on Resulting Trusts, created by Cameron Tinkler on 07/05/2019.
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- Cameron Tinkler
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