ISSUE 1 – RESULTING TRUSTS (only apply if there is ABSOLUTELY NO EVIDENCE of intention!) The issue is whether a resulting trust has arisen. Arguably, in the circumstances, ______ (property) was disposed of in which [ PROVIDER OF PROPERTY ] did not intend to confer a beneficial interest on [ RECIPIENT ]. (0) PRESUMPTION OF ADVACEMENT à APPLIES First, the presumption of advancement may apply. A recognised relationship exists between [ PARTY A – PROVIDER ] ( who is the mother ) and [ PARTY B – RECIPIENT ] ( who is the child ) [ AUTHORITY BELOW ]. This relationship in itself provides evidence of an intention. [ PARTY A – PROVIDER OF GIFT ] [ PARTY B – RECIPIENT OF GIFT ] Authority / additional notes Father Child [includes ADULT child] à Scott v Pauly Nelson v Nelson • Arguably, this includes in loco parentis to child ( ie. illegitimate and adopted child à any form of familial r/s where one party has acted for the parent of another ) Mother Child Brown v Brown Husband Wife Calverley v Green • Does NOT apply to a transfer of property made by wife to husband ( March v March ) Man Fiancé Wirth v Wirth; Moat v Moat • The gift is made in contemplation of the marriage • If marriage does NOT occur, the gift is returned • If the gift is NOT returned, it will be held on resulting trust ( Jenkins v Wynen ) • … Analogous to Trustees of the Property of Cummins , it could be argued that although unequal contributions were Resulting Trust Presumption of advancement YES Rebutted = NO intention Not rebutted = Intention to make the gift NO Presumed resulting trust Voluntary transfer Purchase money Single contributor = ONE NAME Multiple contributor = ONE NAME Multiple contributor = TWO NAMES Calverley v Green situation Automatic resulting trust
SJ NOTES – EQUITY AND TRUSTS 50 made to the purchase of the family home , equity should assume that the spouses intended to share the property equally . However, Cummins concerned a wife giving the husband a gift, and therefore, the presumption of advancement may not even come to fruition in the first place ( March v March ). Rebutting the presumption However, the presumption of advancement can be rebutted by evidence at the time of the transfer ( Charles Marshall v Grimsley ) that the parties did NOT intend to confer a beneficial interest on [ RECIPEINT ]. On the facts, the presumption ____ (can / cannot) be rebutted because _____ (apply facts). • … Since this was an investment property , the presumption will be most likely rebutted ( Buffery v Buffery ). (0) PRESUMPTION OF ADVACEMENT à DOES NOT APPLY First, the presumption of advancement will likely not apply because ______ • … a recognised relationship does not exist on the facts. • … analogous to Anderson v McPherson , [ PARTY B – RECIPIENT ] was an adult child. The presumption does not apply unless the context shows otherwise. (1) PRESUMED RESULTING TRUST Second, because there is absolutely NO evidence of intention , a presumed resulting trust, in the form of a ______ (‘purchase money’ / ‘voluntary transfer’) resulting trust, may arise. ‘Voluntary transfer’ resulting trust à provided gratuitously [ PROVIDER ] transferred property in the name of [ RECIPIENT ] voluntarily without any objective intention . Although [ RECIPIENT
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