The issue is whether a resulting trust has arisen Arguably in the circumstances

The issue is whether a resulting trust has arisen

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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
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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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