46 And sixthly, it avoided escheat *L.Q.R. 80 and forfeiture for treason, the latter being especially problematic in the turbulent times of the late fifteenth century. 47 In fact, so common did feoffments to uses become, that it was said that “few men be sole seised on their land”. 48 But because it was not usual to include words of trust on the face of the conveyance, and because such transfers were gratuitous, it was difficult to distinguish them from outright transfers. The solution lay in the use in certain cases of a presumption of a declaration to uses. Thus, in Cook v Fountain, Lord Nottingham L.C. spoke of trusts where the declarations “appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called presumptive trusts; and that is, when the Court, upon consideration of all circumstances presumes there was a declaration, either by word or writing, though the plain and Page4
direct proof thereof be not extant.” 49 The presumption of declaration of trust was not, however, universally applied. As the same judge later explained in Grey v Grey : “A feoffment to a stranger, without consideration, raised a use to the feoffor; but a feoffment to the son, without other consideration, raised no use by implication to the father, for the consideration of blood settled the use in the son, and made it an advancement.” 50 It is important to appreciate that the fact proved by presumption was, as Lord Nottingham makes clear, a declaration to uses, not merely that the feoffor possessed at the time of the transfer an unexpressed intention to create a use. Were it otherwise, we would be dealing with a rule of substantive law, not procedure, for an unexpressed intention to create a trust when proved by evidence does not generate a trust. As Megarry J. said in Re Vandervell's Trusts (No.2), “the mere existence of some unexpressed intention in the breast of the owner of the property does nothing: there must at least be some expression of that intention before it can effect any result.” 51 *L.Q.R. 81 IV. HAS THE PRESUMPTION CHANGED? Though admitting that the fact proved by presumption in this early period was a declaration of trust, both Birks and Chambers argue that this is no longer the case. The fact proved by presumption today, they say, is a “non-beneficial transfer”. 52 It is said that the presumption changed around 1660, when trusts replaced uses. The reason was the enactment of two statutes, the Wills Act 1540 and the Tenures Abolition Act 1660, 53 the former allowing fee simple titleholders to leave their interests by will, the latter abolishing a number of feudal incidents. Their combined effect, says Chambers, was to remove the incentive for title-holders to create trusts for themselves.
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- Common Law, Wills and trusts, Trust law, Evidence law, Chambers