resulting trusts

Resulting TrustsResulting Trusts

Associate Professor Cameron Associate Professor Cameron StewartStewart

DefinitionDefinition

A resulting trust is a trust that arises A resulting trust is a trust that arises because equity presumes an because equity presumes an intention to create a trust. intention to create a trust.

They are often referred to as They are often referred to as ‘implied’ trusts, although they ‘implied’ trusts, although they should not be confused with express should not be confused with express trusts where an intention to create trusts where an intention to create the trust is implied from wording or the trust is implied from wording or surrounding circumstances. surrounding circumstances.

Automatic resulting Automatic resulting truststrusts

WestdeutscheWestdeutsche Landesbank Girozentrale v Landesbank Girozentrale v Islington Borough CouncilIslington Borough Council

Resulting trusts which arise when there has Resulting trusts which arise when there has been a failure of an express trust, or, been a failure of an express trust, or, alternatively, where there is a surplus of trust alternatively, where there is a surplus of trust property after a trust has been terminated. In property after a trust has been terminated. In these situations the remaining trust property these situations the remaining trust property is held on resulting trust for the creator of is held on resulting trust for the creator of the trust because it is presumed that the the trust because it is presumed that the creator intended to receive any leftover creator intended to receive any leftover beneficial interest beneficial interest

Presumed resulting trust Presumed resulting trust

Resulting trusts which arise because Resulting trusts which arise because contributions have been made to the contributions have been made to the purchase of property but the purchase of property but the contributor has not been given a contributor has not been given a legal title that is equivalent to that legal title that is equivalent to that contribution. In such a transaction, contribution. In such a transaction, equity presumes that the equivalent equity presumes that the equivalent legal title is held on trust for the legal title is held on trust for the contributor contributor

An institutional trustAn institutional trust

Any presumption that equity makes Any presumption that equity makes about a person’s intention can be about a person’s intention can be rebutted by evidence of actual intentionrebutted by evidence of actual intention

A resulting trust comes into existence A resulting trust comes into existence from the date of the circumstances from the date of the circumstances giving rise to its presumption giving rise to its presumption

The resulting trust is a The resulting trust is a property property institutioninstitution like an express trust, rather like an express trust, rather than a than a remedyremedy


Rickett and Grantham (2000) at 19:Rickett and Grantham (2000) at 19: The resulting trust and its foundational The resulting trust and its foundational

presumptions operate as part of the presumptions operate as part of the law of property, simply as a series of law of property, simply as a series of default rules locating the beneficial default rules locating the beneficial interest in property when the transfer interest in property when the transfer of the property is itself ambiguous as of the property is itself ambiguous as to the location of that interest, or to the location of that interest, or ineffective to dispose of that interest ineffective to dispose of that interest


Some scholars, like Chambers Some scholars, like Chambers (1997), have argued that beyond this (1997), have argued that beyond this basic but fundamental role, lies an basic but fundamental role, lies an attempt by equity to prevent or attempt by equity to prevent or reverse unjust enrichment on the reverse unjust enrichment on the part of those who have received part of those who have received legal title where there was no legal title where there was no intention for them to obtain a intention for them to obtain a beneficial interest.beneficial interest.

Incomplete disposition of a Incomplete disposition of a beneficial interestbeneficial interest

A resulting trust will be imposed A resulting trust will be imposed when there has been an incom plete when there has been an incom plete disposition of a beneficial interest in disposition of a beneficial interest in a trust. This can occur when an a trust. This can occur when an express trust fails, when the purpose express trust fails, when the purpose of a trust fails or when a trust of a trust fails or when a trust surplus exists after satisfaction of surplus exists after satisfaction of the purpose of a trust. the purpose of a trust.

Failure of an express Failure of an express trusttrust

After an express trust fails, equity After an express trust fails, equity imposes a resulting trust by presuming imposes a resulting trust by presuming an intention on the part of the creator an intention on the part of the creator for the trust property to revert back to for the trust property to revert back to the creator. the creator.

If a trust fails for illegality, equity looks If a trust fails for illegality, equity looks at the specific circumstances of the case at the specific circumstances of the case and the particular policy behind the law and the particular policy behind the law that had been breached, before that had been breached, before determining whether a resulting trust determining whether a resulting trust should be applied: should be applied: Nelson v NelsonNelson v Nelson

Failure of the purpose of Failure of the purpose of a loana loan

Quistclose Quistclose trusts trusts This trust has been classified by This trust has been classified by

Lord Millet in Lord Millet in Twinsectra Ltd v Twinsectra Ltd v YardleyYardley [2002] 2 AC 164; [2002] 2 AC 164; [2002] 2 [2002] 2 All ER 377, All ER 377, as a resulting trustas a resulting trust

Salvo v New Tel Ltd Salvo v New Tel Ltd [2005] NSWCA [2005] NSWCA 281: the majority (Spigelman CJ and 281: the majority (Spigelman CJ and Young CJ in Eq) favoured an express Young CJ in Eq) favoured an express trust treatmenttrust treatment

Trust surpluses after Trust surpluses after satisfaction of the purpose satisfaction of the purpose

of a trustof a trust A trust surplus might exist after the A trust surplus might exist after the

beneficiaries in a fixed trust have beneficiaries in a fixed trust have taken all their entitlements or have taken all their entitlements or have died. In such cases there will be a died. In such cases there will be a resulting trust of the surplus back to resulting trust of the surplus back to the creator of the trust the creator of the trust

Purchase of property in Purchase of property in another person’s nameanother person’s name

If a purchaser buys property and If a purchaser buys property and voluntarily directs the transfer of the voluntarily directs the transfer of the property into the name of another property into the name of another person, equity presumes that the owner person, equity presumes that the owner holds that property on resulting trust for holds that property on resulting trust for the purchaser:the purchaser: Napier v Public Trustee Napier v Public Trustee (WA)(WA)

For example, if A purchases property For example, if A purchases property from B, and directs that B transfer the from B, and directs that B transfer the title into C’s name, equity presumes that title into C’s name, equity presumes that C holds the property on trust for A. C holds the property on trust for A.


The presumption applies to both real The presumption applies to both real and personal property and personal property

Eg Russell v ScottEg Russell v Scott (1936) 55 CLR (1936) 55 CLR 440, the presumption of resulting 440, the presumption of resulting trust applied to a bank account that trust applied to a bank account that was opened by one party in her own was opened by one party in her own name and the name of her carer. name and the name of her carer. That presumption was rebutted by That presumption was rebutted by evidence of an intention to convey a evidence of an intention to convey a beneficial interest on the carer beneficial interest on the carer


The presumption of resulting trust The presumption of resulting trust will not arise in cases where the will not arise in cases where the purchase monies have been provided purchase monies have been provided as a loan. The presumption only as a loan. The presumption only applies when the provider of the applies when the provider of the monies acts as a purchaser or monies acts as a purchaser or directs that the purchase take place directs that the purchase take place

Contributions to the Contributions to the purchase of propertypurchase of property

In cases where the purchase money In cases where the purchase money is provided by two or more parties is provided by two or more parties jointly, and the property is put into jointly, and the property is put into the name of one of the parties, the name of one of the parties, equity will presume a resulting trust equity will presume a resulting trust in favour of the other party or in favour of the other party or parties parties


For the presumption of resulting For the presumption of resulting trust to arise, contributions that are trust to arise, contributions that are made by the parties must go towards made by the parties must go towards the purchase price of the property. the purchase price of the property. Importantly, equity determines this Importantly, equity determines this by looking at what was provided by by looking at what was provided by the parties at the the parties at the date of purchasedate of purchase


Several types of contribution can be Several types of contribution can be recognised as contributions to purchase recognised as contributions to purchase price. Obviously, direct payment of money price. Obviously, direct payment of money towards purchase will be included, as will towards purchase will be included, as will be legal fees, stamp duty and incidental be legal fees, stamp duty and incidental costs associated with the costs of costs associated with the costs of acquisition acquisition

If a party has incurred a mortgage liability If a party has incurred a mortgage liability to provide contributions to the purchase to provide contributions to the purchase price, that mortgage liability counts as a price, that mortgage liability counts as a contributioncontribution


Because equity looks at contributions that Because equity looks at contributions that are made at the date of purchase, the are made at the date of purchase, the presumption of resulting trust will not arise presumption of resulting trust will not arise when payments are made towards costs when payments are made towards costs incurred after the property has been incurred after the property has been acquired acquired

Australian courts have refused to recognise Australian courts have refused to recognise payments of mortgage instalments as contri payments of mortgage instalments as contri butions if they are made by a party who butions if they are made by a party who incurred no mortgage liability at the date of incurred no mortgage liability at the date of purchase purchase


in England the courts have recognised that in England the courts have recognised that some indirect financial contributions, which some indirect financial contributions, which occur after purchase, may be considered in occur after purchase, may be considered in the calculation of the beneficial interests the calculation of the beneficial interests

In In Midlands Bank v CookeMidlands Bank v Cooke, the Court of , the Court of Appeal found that once some direct financial Appeal found that once some direct financial contribution had been made it was then open contribution had been made it was then open to the court to calculate the beneficial to the court to calculate the beneficial interests on the basis of all contributions, interests on the basis of all contributions, whether direct or indirect, whether prior to whether direct or indirect, whether prior to or after purchase or after purchase


Upgrades and maintenance will not Upgrades and maintenance will not be considered as contributions be considered as contributions unless there was a common unless there was a common intention or agreement between the intention or agreement between the parties that is enforceable or gives parties that is enforceable or gives rise to an estoppel rise to an estoppel

The nature of co-ownership The nature of co-ownership in resulting trustsin resulting trusts

Ordinarily equity’s presumption of Ordinarily equity’s presumption of resulting trust is based on the co-resulting trust is based on the co-owners holding their shares as owners holding their shares as tenants in common tenants in common

However, in cases where the parties However, in cases where the parties made equal contributions, equity made equal contributions, equity presumed that the interests were presumed that the interests were held as joint tenants and not as held as joint tenants and not as tenants in common. tenants in common.


Why did equity prefer joint tenancy when Why did equity prefer joint tenancy when the contributions were equal? In such the contributions were equal? In such circumstances it was said that ‘equity circumstances it was said that ‘equity followed the law’ and the common law followed the law’ and the common law always presumed that co-owners took as always presumed that co-owners took as joint tenants in the absence of an express joint tenants in the absence of an express declaration of tenancy in common declaration of tenancy in common

Statutory reforms have reversed the Statutory reforms have reversed the common law presumption of joint tenancy common law presumption of joint tenancy in some jurisdictions and imposed a in some jurisdictions and imposed a presumption of tenancy in common presumption of tenancy in common


In In Delehunt v Carmody Delehunt v Carmody (1986) 161 (1986) 161 CLR 464; 68 ALR 253, the High CLR 464; 68 ALR 253, the High Court found that equity still followed Court found that equity still followed the law in these jurisdictions and, the law in these jurisdictions and, given that the law had changed, given that the law had changed, equity would now presume tenancy equity would now presume tenancy in common when the parties make in common when the parties make equal contributions to purchase equal contributions to purchase price.price.

Rebutting the presumption Rebutting the presumption of resulting trust of resulting trust

When the presumption of resulting trusts When the presumption of resulting trusts arises, evidence can be admitted of the actual arises, evidence can be admitted of the actual intention of the parties to prove that no such intention of the parties to prove that no such trust was intended trust was intended

Intention remains para mount in resulting trusts Intention remains para mount in resulting trusts and evidence of the circumstances surrounding and evidence of the circumstances surrounding the transfers is admissible, whether it be the transfers is admissible, whether it be written or parol evidence. However, it is written or parol evidence. However, it is important to note that the evidence must relate important to note that the evidence must relate to the intention of the parties at the time that to the intention of the parties at the time that the interests were created the interests were created

The presumption of The presumption of advancementadvancement

In some cases equity refuses to presume In some cases equity refuses to presume an intention to create a resulting trust an intention to create a resulting trust and instead presumes that any purchase and instead presumes that any purchase or contribution was intended to be a gift or contribution was intended to be a gift by way of advancement.by way of advancement.

This presumption of advancement only This presumption of advancement only arises in cases where purchase monies or arises in cases where purchase monies or contributions are provided by a husband contributions are provided by a husband to a wife or by a parent to a child (not to a wife or by a parent to a child (not necessarily biological children but necessarily biological children but someone to whom the provider of funds someone to whom the provider of funds stands in the position of a parent). stands in the position of a parent).


It does not arise in other fiduciary It does not arise in other fiduciary relationships, like those between relationships, like those between companies and directors: companies and directors: SCE SCE Building Constructions Pty Ltd (in liq) Building Constructions Pty Ltd (in liq) v Saad v Saad [2003] NSWSC 796 [2003] NSWSC 796

The effect of a presumption of The effect of a presumption of advancement is to override the advancement is to override the presumption of resulting trust with presumption of resulting trust with the result that the legal and equitable the result that the legal and equitable estates will stay where they lie estates will stay where they lie


The presumption of advancement, like The presumption of advancement, like the presumption of result ing trust, the presumption of result ing trust, can be rebutted by evidence of the can be rebutted by evidence of the intention of the parties intention of the parties at the time of at the time of the transferthe transfer. If it is shown that there . If it is shown that there was no actual intention to confer a was no actual intention to confer a beneficial interest on the legal title beneficial interest on the legal title holder the presumption will not be holder the presumption will not be effective and the normal presumption effective and the normal presumption of resulting trust will apply of resulting trust will apply


The presumption of advancement arises The presumption of advancement arises when a husband either provides the when a husband either provides the purchase price or makes contributions to purchase price or makes contributions to the purchase price of property in which the purchase price of property in which the wife is given a legal interest the wife is given a legal interest

It does not arise in cases of transfers from It does not arise in cases of transfers from a wife to her husband: a wife to her husband: March v MarchMarch v March (1945) 62 WN(NSW) 111. In the past it (1945) 62 WN(NSW) 111. In the past it has been assumed that the husband had a has been assumed that the husband had a natural duty to provide for his wife (and natural duty to provide for his wife (and children) and this gave rise to the children) and this gave rise to the presumption presumption


In In Scott v PaulyScott v Pauly (1917) 24 CLR 274 at (1917) 24 CLR 274 at 282, Isaacs J stated that the presumption 282, Isaacs J stated that the presumption of advancement,of advancement, … … is an inference which the courts of equity in is an inference which the courts of equity in

practice drew from the mere fact of the practice drew from the mere fact of the purchaser being the father, and the head of purchaser being the father, and the head of the family, under the primary moral obligation the family, under the primary moral obligation to provide for the children of the marriage, to provide for the children of the marriage, and in that respect differing from the mother.and in that respect differing from the mother.


In In Calverley v Green Calverley v Green (1984) 155 CLR (1984) 155 CLR 242 at 268; (1984) 56 ALR 483 at 242 at 268; (1984) 56 ALR 483 at 501,501, Deane J advocated an Deane J advocated an adjustment of the doctrine to ‘reflect adjustment of the doctrine to ‘reflect modern conceptions of equality in modern conceptions of equality in status and obligations of a wife vis-a-status and obligations of a wife vis-a-vis a husband’. vis a husband’.


The presumption can also arise in cases The presumption can also arise in cases where a transfer occurs between a man where a transfer occurs between a man and his intended wife or fiancee: and his intended wife or fiancee: Wirth v Wirth v Wirth Wirth (1956) 98 CLR 228; (1956) 98 CLR 228; Bertei v Feher Bertei v Feher [2000] WASCA 165. Such a transfer is [2000] WASCA 165. Such a transfer is consid ered to be a gift in contemplation of consid ered to be a gift in contemplation of marriage. If the marriage does not occur marriage. If the marriage does not occur the gift should be returned. If the gift is the gift should be returned. If the gift is not returned it will be then held on not returned it will be then held on resulting trust: resulting trust: Jenkins v WynenJenkins v Wynen [1992] 1 [1992] 1 Qd R 40 Qd R 40


The presumption of advancement does not The presumption of advancement does not arise in de facto rela tionshipsarise in de facto rela tionships

Calverley v GreenCalverley v Green (1984) 155 CLR 242 (1984) 155 CLR 242 . Mason and Brennan JJ stated at CLR . Mason and Brennan JJ stated at CLR

260; ALR 495 that:260; ALR 495 that: The term ‘de facto husband and wife’ The term ‘de facto husband and wife’

embraces a wide variety of hetero sexual embraces a wide variety of hetero sexual relationships; it is a term obfuscatory of any relationships; it is a term obfuscatory of any legal principle except in distinguishing the legal principle except in distinguishing the relationship from that of husband and wife. It relationship from that of husband and wife. It would be wrong to apply … the presumption of would be wrong to apply … the presumption of advancement …advancement …


There is a presumption of advancement There is a presumption of advancement when purchase money is provided by a when purchase money is provided by a parent and the legal title is taken by a parent and the legal title is taken by a child child

The key requirement is that the purchase The key requirement is that the purchase price be provided by someone in price be provided by someone in loco loco parentisparentis (in the position of a parent). As (in the position of a parent). As such the presump tion can also apply to such the presump tion can also apply to illegitimate and adopted children, as well illegitimate and adopted children, as well as to other forms of familial relationship, as to other forms of familial relationship, as long as one party has acted as the as long as one party has acted as the parent for the other parent for the other


Traditionally, it was thought that the Traditionally, it was thought that the presumption of advance ment would presumption of advance ment would only arise when a father provided only arise when a father provided funds for the purchase of property for funds for the purchase of property for his children: his children: Scott v Pauly Scott v Pauly (1917) 24 (1917) 24 CLR 274 at 282, per Isaacs J. CLR 274 at 282, per Isaacs J. However, in more recent cases the However, in more recent cases the presumption has been recognised as presumption has been recognised as arising between a mother and her arising between a mother and her children: children: Brown v Brown Brown v Brown (1993) (1993) 31 NSWLR 582 31 NSWLR 582

Gifts and resulting trustsGifts and resulting trusts

Presumptions of resulting trust and Presumptions of resulting trust and of advancement can also arise in of advancement can also arise in gifts (voluntary transfers of gifts (voluntary transfers of property). For example, if A makes a property). For example, if A makes a gift of property to B, a presumption gift of property to B, a presumption of resulting trust may arise that B of resulting trust may arise that B holds the property on trust for A holds the property on trust for A


Equity treats gifts of realty differently to Equity treats gifts of realty differently to gifts of personalty. Unfortunately the gifts of personalty. Unfortunately the operation of the presumptions in gifts of operation of the presumptions in gifts of land has been made problematic because of land has been made problematic because of the operation of the Statute of Uses 1535. the operation of the Statute of Uses 1535. Prior to that statute, equity presumed that Prior to that statute, equity presumed that any interest in land given without con any interest in land given without con sideration to a stranger (meaning someone sideration to a stranger (meaning someone to whom a presumption of advancement to whom a presumption of advancement would not arise) was held on resulting use would not arise) was held on resulting use

Gifts and resulting trustsGifts and resulting trusts After the statute the use was executed and After the statute the use was executed and

the ownership reverted back to the grantor, the ownership reverted back to the grantor, leaving the transfer ineffectualleaving the transfer ineffectual

To enable people to make gifts of realty, the To enable people to make gifts of realty, the courts recognised the voluntary transfers if courts recognised the voluntary transfers if they were expressed to be given ‘unto and to they were expressed to be given ‘unto and to the use of’ the strangerthe use of’ the stranger

Legislation provides that no presumption of Legislation provides that no presumption of resulting trust will arise in a voluntary resulting trust will arise in a voluntary transfer of realty, unless the transferor transfer of realty, unless the transferor expresses an intention to create a use or a expresses an intention to create a use or a trust: Conveyancing Act 1919 (NSW), s 44 trust: Conveyancing Act 1919 (NSW), s 44


With regards to personalty, if a gift With regards to personalty, if a gift is made to a stranger of per sonalty is made to a stranger of per sonalty which can produce income, then a which can produce income, then a resulting trust will be presumed: resulting trust will be presumed: Hendry v E F Hendry Pty Ltd Hendry v E F Hendry Pty Ltd [2003] [2003] SASC 157. Otherwise, gifts of SASC 157. Otherwise, gifts of personalty will not give rise to a personalty will not give rise to a resulting trust. resulting trust.

Problem Problem

Han and Leia entered into a de facto Han and Leia entered into a de facto relationship in 1975. In 1976 they had a relationship in 1975. In 1976 they had a child named Luke. In 1987 they purchased child named Luke. In 1987 they purchased a house in Lucastown for $150,000. The a house in Lucastown for $150,000. The purchase price was paid by Han; the money purchase price was paid by Han; the money coming to Han as an inheritance from the coming to Han as an inheritance from the estate of his late uncle. At the time of estate of his late uncle. At the time of purchase, Han decided to have the purchase, Han decided to have the property registered in his, Leia’s and property registered in his, Leia’s and Luke’s names as tenants in common and in Luke’s names as tenants in common and in equal shares. equal shares.

Problem Problem

In 1994, when Luke reached his majority In 1994, when Luke reached his majority age, with the Yavin Bank Ltd in the joint age, with the Yavin Bank Ltd in the joint names of Han and Luke. Han told Luke names of Han and Luke. Han told Luke that he would be making all the deposits that he would be making all the deposits into the account and would withdraw into the account and would withdraw from the account whenever it may from the account whenever it may become necessary. However, he also become necessary. However, he also said that if anything should ever happen said that if anything should ever happen to him (ie Han) the money then in the to him (ie Han) the money then in the account would belong to Luke.account would belong to Luke.

Problem Problem

Two weeks ago Han and Leia died in a Two weeks ago Han and Leia died in a car accident. In his will Han left his car accident. In his will Han left his entire estate to Beru, his daughter that entire estate to Beru, his daughter that he had fathered in 1972 before he had he had fathered in 1972 before he had met Leia. In her will Leia left her entire met Leia. In her will Leia left her entire estate to Luke. At the time of their estate to Luke. At the time of their deaths the Lucastown property was deaths the Lucastown property was worth $300,000, and the bank account worth $300,000, and the bank account at Yavin Bank Ltd had a balance of at Yavin Bank Ltd had a balance of $5000 $5000

Problem Problem

Beru seeks your advice as to Beru seeks your advice as to whether she has any entitlements in whether she has any entitlements in the Lucastown property and the the Lucastown property and the bank account, and if not who is bank account, and if not who is entitled and to what extent.entitled and to what extent.

SolutionSolution

Given that the problem concerns Given that the problem concerns parties who are deceased, it is not parties who are deceased, it is not subject to any of the legislative subject to any of the legislative regimes controlling de facto regimes controlling de facto relationships and must be dealt with relationships and must be dealt with using equity using equity

SolutionSolution Dealing first with the interests in the property Dealing first with the interests in the property

at Lucastown, Han, Luke and Leia each owned at Lucastown, Han, Luke and Leia each owned an equivalent tenancy in common equalling one-an equivalent tenancy in common equalling one-third of the value of the property. Tenancies in third of the value of the property. Tenancies in common contain no right of survivorship so at common contain no right of survivorship so at law the interests that will pass through Han’s law the interests that will pass through Han’s will to Beru are her father’s one-third interest in will to Beru are her father’s one-third interest in the house. Similarly Luke will receive Leia’s the house. Similarly Luke will receive Leia’s one-third interest, leaving him with a two-thirds one-third interest, leaving him with a two-thirds interest at common law. However, it is open to interest at common law. However, it is open to equity to adjust the beneficial interests of the equity to adjust the beneficial interests of the parties and whatever interests equity believes parties and whatever interests equity believes were beneficially owned by Han at the time of were beneficially owned by Han at the time of his death will pass to Beru, via Han’s will. his death will pass to Beru, via Han’s will. Similarly, any beneficial interests held by Leia Similarly, any beneficial interests held by Leia will pass to Luke, via her will. will pass to Luke, via her will.

SolutionSolution Given that Han provided the entirety Given that Han provided the entirety

of the purchase price, a presumption of the purchase price, a presumption of resulting trust is raised in Han’s of resulting trust is raised in Han’s favour over both Leia’s one-third favour over both Leia’s one-third interest and Luke’s one-third interest interest and Luke’s one-third interest

There is no pre sumption of There is no pre sumption of advancement in favour of Leia that will advancement in favour of Leia that will override the presumption of resulting override the presumption of resulting trust. She is a de facto partner and, as trust. She is a de facto partner and, as such, no presumption of advancement such, no presumption of advancement can be raised in her favour can be raised in her favour

SolutionSolution There does not appear to be any There does not appear to be any

evidence of Han’s actual intention to evidence of Han’s actual intention to rebut this presump tion. The beneficial rebut this presump tion. The beneficial interest therefore belonged to Han interest therefore belonged to Han and passes to Beru in his will and passes to Beru in his will

A presumption of advancement can be A presumption of advancement can be successfully raised in Luke’s favour successfully raised in Luke’s favour

It matters not that Luke was born out It matters not that Luke was born out of wedlock of wedlock

Therefore his interest is not held on Therefore his interest is not held on resulting trust and one-third legal resulting trust and one-third legal title stays with him title stays with him

SolutionSolution In relation to the bank account, it In relation to the bank account, it

should be noted that the pre should be noted that the pre sumptions arise over transfers of sumptions arise over transfers of both real and personal property both real and personal property

The presumptions of resulting trust The presumptions of resulting trust and advancement apply to joint bank and advancement apply to joint bank accounts where one party provides accounts where one party provides all the funds for that account: all the funds for that account: Russell v ScottRussell v Scott (1936) 55 CLR 440 (1936) 55 CLR 440

SolutionSolution The presumption of advancement is The presumption of advancement is

obviously paramount here, given the obviously paramount here, given the relationship between Han and Luke. relationship between Han and Luke. It does not matter that Luke was an It does not matter that Luke was an adult when the bank account was adult when the bank account was opened: opened: Brown v Brown Brown v Brown (1993) 31 (1993) 31 NSWLR 582. There is no evidence of NSWLR 582. There is no evidence of actual intention that rebuts the actual intention that rebuts the presumption of advancement. presumption of advancement. Therefore the benefi cial interest Therefore the benefi cial interest remains with Luke.remains with Luke.

resulting trusts

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