– Mr Evans wanted to transfer the house to Mr Marks.– Held: PRT for Mrs Hodgson because of her actual intention to retainthe house.24
(3) Exceptions – Presumptions of Advancement/Gift:• As above, the general rule is that on apurchase of property by A in B’s name, B ismerely a trustee (under a PRT) for A and B.• Exception: A has anatural obligationtoprovide for B:•Transfers by a husband to his wife.•Transfers by fathers to their legitimate children.•Transfers by persons who standin loco parentispatris.•I.e. instead of PRT (for A), there is apresumption of a gift for B.25(3) Exceptions – Presumptions of Advancement/Gift:•Murless v Franklin (1818)– Lord Eldon:–“The general rule that on a purchase by one man in the name of another,the nominee is a trustee for the purchaser issubject to an exceptionwhere the purchaser is under a species of natural obligation to providefor the nominee.”•Bennet v Bennet (1879)– Jessel MR:–“The doctrine of equity as regards presumption of gifts is this, that whereone person stands in such a relation to another that there is an obligation onthat person to make a provision for the other, and we find either a purchaseor investment in the name of the other, or in the joint names of the personand the other, of an amount which could constitute a provision for the other,the presumption arises of an intention on the part of the person to dischargethe obligation to the other; and therefore, in the absence of evidence to thecontrary, that purchase or investment is held to be in itself evidence of a gift.Inotherwords,thepresumptionofgiftarisesfromthemoralobligation to give.”26
(a) Transfers by husband to wife:•Re Eykyn’s Trusts (1877)– Malins VC:–“The law of this court is perfectly settled that where ahusband transfers money or other property into thename of his wife only, then the presumption is that itis intended as a gift or advancement to the wifeabsolutely.”– Note: The presumption only applies to transfers by ahusband to his wife. It does not apply to unmarriedcouples or where wife transfers property to husband.Is this rule still relevant today (in view of the socio-economic and cultural changes)?27(b) Transfers by fathers to their legitimate children:•Bennet v Bennet (1879)– Jessel MR:–“… the father is under [an] obligation from the merefact of his being the father, and therefore no evidenceis necessary to show the obligation to provide for hischild, because that is part of his duty. In the case of afather, you only have to prove the fact that he is thefather, and when you have done that the obligation atonce arises.”– Note: The presumption is extremely weighty. I.e. it is not rebuttedby slight evidence.
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- Fall '19
- Wills and trusts, Trust law, Express Trust, Freeman Matthews