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Voluntary transfer + Presumption of Advancement
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This is part of a bundle for Equity and Trusts Term 2. Includes: - Maxims - Implied Trusts - Constructive Trusts - Illegality - Presumption of Advancement
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Equity & Trusts 2 lecture 5Voluntary Transfer
Initial presumption remains (no s60(3) to worry about!)
Re Vinogradoff [1935] WN 68: grandmother voluntarily transferred £800 war loan stock to joint
names to her & 4 yr old granddaughter. Will: left to s/o else. Who owned?
Held: Resulted back to grandmother’s estate, granddaughter held on resulting trust for her
grandmother.
But: Lord B-W Westdeustche: intention of a 4 year old? No evidence grandmother intended to make
her a trustee. Conscience of a 4 year old affected????!
Basic principle: property is held on trust for the person who put up the money – regardless of whose
name the property is in.
Dyer v Dyer (1788) “the clear result of all the cases, without a single exception is that the trust of a
legal estate, whether freehold, copyhold, leasehold; whether taken in the name of the purchasers
and others jointly, or in the name of others without that of the purchaser, whether in one name or
several, whether jointly or successively, results to the man who advances the purchase monies”
Confirmed in Abrahams v the Trustee in Bankruptcy of Abrahams, 1991
• Mr & Mrs A members of lottery syndicate, £1 pw, separated, Mrs A paid his £1
• Win £3m, approx. £250,000 each. TiB claimed Mr A’s share, Mrs A claimed as she’d paid £1
pw, RT to her!
Held (HC): Mrs A as payer, had proprietary right under syndicate’s rules. Presumption of RT & no
evidence to rebut
Rebutting the Presumption
Fowkes v Pascoe (1875) 10 Ch App 343 – CHECK FACTS OF THE CASE
Sarah Baker, an elderly and wealthy woman, purchased stock in joint names with John Pascoe,
daughter in law’s son, who claimed it was a gift. John had to put up evidence to show it was a gift,
you can rebut it with evidence of donaitive intent.
• Presumption John Pascoe held on RT for Mrs Baker
• However, presumption rebutted by circumstances:
• Mrs B v wealthy
• Mr P living in her house
, • Mrs B already providing for him
So Intended him to have a beneficial interest in his half
See also Vajpeyi v Yusaf [2003] EWHC 2339 – doomed relationship between young conservative
woman and a hinder doctor.
Jessel MR at 345“That is not only a rule of law, but a rule founded on sound policy and good sense.
Those that allege that other people, especially in this position, given them large sums of money must
prove it, and prove to the satisfaction of a Court of Justice that they are entitled to that sum of
money”
Presumption of Advancement – Presumption of resulting is that its intended for settlor
But PoA intended for a gift
- Thoughts on this counter-presumption?
- Historical / social context - sexist
- Equity’s darling article
- Art 5, 7th Protocol of the ECHR “Spouses shall enjoy equality of rights and
responsibilities…between them and in their relations with their children”????
- Equality Act 2010 Part 15 Family Property s199 abolishes this presumption, but not in
force yetThose are the relationships where it arsies
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