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•He proposed to the Defendant on 24 June 2007 and immediately signed the provisional sale and purchase agreement to transfer the property to the Defendant for no actual consideration.•The Plaintiff and Defendant broke up a few months later (before the wedding). •The Plaintiff wants the property transferred back, the Defendant refused, saying it was ____________.34
PRESUMPTION OF ADVANCEMENT (I.E. A ‘GIFT’)35
Presumption of advancement: Rationale•We have just seen why the law is generally suspicious of gifs.•But is it always the case that outright gifs are suspicious? Could there be any circumstances / relationships where a gif is not suspicious?•But in some circumstances the law has been willing to raise a rebuttablepresumption that the voluntary transfer of property was indeed a gif.•The situations depend on the relationshipbetween the transferor and transferee. •Some differences between the UK relationships and HK relationships.36
Father to Child•Grey v Grey(1677)36 ER 742 at 743:“…a purchase in the name of a stranger is a trust, for want of consideration, but a purchase in the name of a son is no trust, for the consideration is apparent……1. For the natural consideration of blood and affection is so apparently predominant, that those acts which would imply a trust in a stranger, will not do so in a son; and ergo, the father who would check and control the appearance of nature, ought to provide for himself by some instrument, or some clear proof of a declaration of trust, and not depend upon any implication of law;….:37
Father to Child•Bennet v Bennet(1879) 10 ChD 474•Ann Bennet gave £3,000 to her son, Philip to help him through some financial difficulties.•Philip went bankrupt, •Philip’s trustees in bankruptcy claimed _____? (because ___?)•Ann’s solicitors claimed ______?•In Hong Kong, see for example, Wong Sing v Wong Chun Wai 1 HKC 155 at paras 12-14 per Sakhrani J.38
Bennet v Bennet(1879) 10 ChD 474•Jessell MR at 477:“So that a person in loco parentismeans a person taking upon himself the duty of a father to a child to make a provision for that child…But the father is under that obligation from the mere fact of his being the father, and therefore no evidence is necessary to shew the obligation to provide for his child, because that is part of his duty. In the case of a father, you have only to prove the fact that he is the father, and when you have done that the obligation at once arises…But in our law there is no moral legal obligation – I do not know how to express it more shortly - no obligation according to the rules of equity – on a mother to provide for her child: there is no such obligation as a Court of Equity recognises as such.39
(HK) Mother to child?•Bennet v Bennetholds that there is no presumption of advancement between mother and child.