the relationship between parent and child was one where the child had become an adult. Husband to Wife Tinker v Tinker  Mr Tinker bought a garage business and wanted to buy a house near his work He was advised by solicitors to put the house in his wife’s name only He did it to avoid potential creditors. The marriage then broke down. Mr Tinker argued there was a resulting trust as he advanced the purchase price for the property. He claimed his wife holds the house on trust for him Held: Court said the presumption of advancement applied since he transferred to his wife. He can rebut presumption. He must provide evidence he didn’t intend to advance his wife’s station but rather intended to defraud his creditors. He does not have clean hands. Pettitt v Pettitt  Wife inherited house. Husband did work on it; when sold he claimed beneficial interest Social relevance of advancement: Lord Reid: Wives’ historical position in relation to their husbands meant it was sensible to give them the advantage of advancement These considerations have largely lost their force under present conditions.
Unless the law has lost all flexibility so that the courts can no longer adapt it to changing conditions, the strength of advancement must have been diminished. Lord Diplock: Advancement came from a pre-war era from cases deciding about the propertied classes. It would be wrong to apply advancement to post-war couples and in cases where the couples are not “propertied” Equality Act 2010 This act has provided for the removal of the presumption of advancement. Received its Royal Assent in April 2010, however, the particular section dealing with advancement is not yet in force. Section 199 – Abolition of presumption of advancement James Brightwell: “Good Riddance to the Presumption of Advancement” : advancement is incompatible with ECHR. It is a discriminatory rule Rebutting the Presumption – Illegality If nothing to rebut presumption, then illegal purpose isn’t addressed you get away with it. “He who comes to equity must come with clean hands” Equity will not allow a transferor to rely on a presumed resulting trust where to do so would allow them to get away with an illegal or fraudulent intention. When looking at presumptions, it is important to consider the background to the cases – specifically looking for evidence of illegal purposes ( Tinker v Tinker) “When both parties are in the wrong, possessor of property is in stronger position” Tinker v Tinker – honestly intended to defeat creditors. Couldn’t defeat them unless the beneficial ownership passed as well. The presumption of advancement was strengthened. Lord Denning – husband found himself on the horns of a dilemma. He couldn’t say to the creditors that the house belonged to the wife and then as against her that it was his.
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- Fall '17
- John Jupp
- Law, Wills and trusts, Trust law, Constructive Trust