Trust (2023): Trust: Express trust + Constructive trust (Part Two)

Presumptive resulting trusts.

These are transfers made by A to B, where the law creates a rebuttable presumption of a resulting trust applying if the intention is not made clear by A. (written evidence produced).

For example, when A transfers property to B, unless the transfer was made by father to child or by husband to wife, in the absence of any other evidence the law presumes that a resulting trust has been created for A.(Y this category excluded: for example:A evidence cannot stand in Course of testimony & remains Hearsay)(A will not get the property if H&W & F&C can adduce evidence it is their property and resulting trust will not arise.

The main categories of fact situations giving rise to a presumption of a resulting trust are: - Where A makes a voluntary conveyance of property to B - Where A has made a monetary contribution to the purchase of property for B.

From these cases it can be stated that where there is a voluntary transfer of property, the law presumes the recipient holds that property on resulting trust, until the property is transferred back to the original owner, unless the recipient can show a gift was intended.

The presumptions are, however, easily rebutted. In Fowkes v Pascoe, evidence was shown that a woman had purchased stock in the names of herself and her grandson; evidence by the grandson and granddaughter-in-law that this had been done as a gift was admissible. On the other hand, the presumption is solely concerned with evidence of an intent to create a trust; ulterior motives to create a trust are not taken into account. In Tinsley v Milligan, a woman transferred property to her business partner on trust in order to fraudulently claim social security payments; it was held that this did not defeat the presumption of a resulting trust.

The fact that is being proved by the presumption of a resulting trust is the intention to create a trust for the settlor. This view of presumed resulting trusts has been endorsed by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington LBC);

"...the presumption of resulting trust is rebutted by evidence of any intention inconsistent with such a trust, not only by evidence of an intention to make a gift."

Some have argued that this presumption arises as a result of a lack of intention to transfer any beneficial interest. This view has generally not received judicial endorsement.