Resulting Trusts and Trusts of the Family Home Flashcards
What situations give rise to the presumption of a resulting trust?
(i) Voluntary transfer of personalty (meaning any property but land);
(ii) A buys property but puts it in Ys name, presumed resulting trust for A
Are resulting trusts presumed in transfers of land?
Not usually. There would need to be evidence supporting the assumption, e.g. transferor and transferee were strangers.
Very unlikely to happen.
What is the presumption of advancement?
It is where no resulting trust is presumed, and rather the transferor is presumed to be gifting property to the transferee.
What are the four instances where the presumption of advancement applies?
(i) father to child;
(ii) legal guardian to child;
(iii) husband to wife;
(iv) fiance to fiance provided they get married
How can the presumption of resulting trust be rebutted?
E.g. that there was a gift for a birthday, a repayment of debt.
When rebutting the presumption of a resulting trust, at what point in time must evidence be shown regarding the transferors intention?
Evidence must be from before or at the time of transfer.
Evidence after the transfer, e.g. that was a gift, is not relied ypon.
What is an automatic resulting trust and when does it occur?
When an express trust fails after constitution, e.g. due to uncertainty of objects, the trustee is deemed to automatically hold the trust property on a resulting trust for the settlor.
Are there any necessary formalities for a resulting trust?
No. The only formalities that attach are ones regarding land (i.e. they must be written and signed with all terms of the trust included).
How does a resulting trust of the family home operate?
If one co-owner made a contribution to the purchase price, e.g. to the deposit or to the mortgage payments, there may be a resulting trust
Does a resulting trust of the family home recognise lifestyle contributions? E.g. leaving a career to look after children?
No. Only monetary contributions are considered in resulting trusts.
What is the ownership situation if there is a dispute between co-owners?
Depends on the evidence shown.
E.g. if there was a clear agreement for shares to be held unequally, that would preside.
If there was a considerable distance in how the partners purchased the property/kept their finances, there may be a finding of unequal shares.
How can a complainant who has no legal interest in the property argue that they have a beneficial interest?
(1) A trust must be established; and
(2) the beneficial interest under the trust must be determined or quantified.
What is a common intention constructive trust?
A trust created regarding the family home to prevent unfairness. No trust has been formally created, but it is implied based on the conduct of the parties.
In which situation is a CICT more likely: Joint ownership or sole ownership?
Sole ownership, as it is possible one partner purchased the property but both accepted the claiming partner had a right in the property.
When jointly owned, it is unlikely the intention was meant to be anything but equal ownership.
How is a common intention constructive trust established?
(i) there must have been a common intention that the partners were to both have an interest’ and
(ii) the claiming partner acted to their detriment on reliance on the common intention.
