120 LQR 95 However as we have seen this is not a presumption at all for no

120 lqr 95 however as we have seen this is not a

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120 *L.Q.R. 95 However, as we have seen, this is not a presumption at all, for no additional facts are proved. 121 All that is involved is a question of the construction of facts already proved by evidence. 122 In truth, the raising of the resulting trust is a question of intention only in a negative sense, and then not as a matter of presumption. The initial exercise of construction merely decides whether the transfer was or was not outright and not whether the transferor intended to create a trust for himself in the latter event. Moreover, the content of the words accompanying the transfer having been proved by evidence, it is impossible in such circumstances to invoke a presumption to prove that the uttered words had some different content. In Lord Browne-Wilkinson's defence, it might be said that the resulting trust arising on failure does so because of a “presumption” that, in the events which have happened, the transferor would have wanted the rights to be so held. But this does not work either. The first difficulty is that, as we have seen, an unexpressed intention is never enough to create a trust. 123 The second is that in all likelihood the transferor did not address his mind to the question. Indeed, it was for this reason that Harman J. in Re Gillingham Bus Disaster Fund rejected presumed intent as the explanation for such trusts. The Page11
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resulting trust could not “rest on any evidence of the state of mind of the settlor, for in the vast majority of cases no doubt he does not expect to see his money back: he has created a trust which so far as he can see will absorb the whole of it.” 124 Even if not contemplated, might it be said, adopting the economists' fiction that people are selfish, that this is what the transferor would have wanted had he thought about it? 125 This explanation, however, fares no better than the last, for once we admit that we are dealing with a fictitious intent, not only do we step outside the realm of presumptions, but we immediately encounter the problem that the House of Lords has forbidden courts from creating trusts based on speculative intent. As Lord Morris of Borth-y-Gest said in Gissing v Gissing : “When the full facts are discovered the court must say what is their effect in law. The court does not decide how the parties might have ordered their affairs: it only finds how they did. The court cannot *L.Q.R. 96 devise arrangements which the parties never made. The court cannot ascribe intentions which the parties in fact never had.” 126 Moreover, insurmountable difficulties arise in terms of rebuttal if we see the failed trust resulting trusts as resting on a presumption. If the “presumption” is that a trust was declared in the transferor's favour, the only facts capable of rebutting it will be ones showing that the transferee was to take outright or as security. Yet we already know, having undertaken the process of construction discussed above, 127 that this particular transferee was intended to do neither. Indeed, the resulting trust only arises, the trust only fails, because this conclusion was reached. There can therefore be no facts capable of
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