Is There a Presumption of Advancement?
The University of Sydney Law School
April 2, 2012
Sydney Law Review, Vol. 33, No. 1, pp. 39-66, 2011
Sydney Law School Research Paper No. 12/20
Resulting trusts developed from resulting uses, and a resulting use was only raised if there was no consideration and no declaration of use. Natural love and affection was good consideration and so would prevent a resulting use. Yet now it seems that the presumption of advancement merely rebuts a presumption of resulting trust, rather than preventing it from arising in the first place. The difference is important because it informs the way in which evidence is used by the party seeking to rebut the presumption. The theoretical point is also interesting, given equity’s position as a supplementary jurisdiction. This article argues that a return to the original position would be accurate as a matter of history, desirable as a matter of principle, and available as a matter of practice.
Number of Pages in PDF File: 29
Keywords: presumption of advancement, presumption of resulting trust, trusts, resulting trusts, equity
JEL Classification: K10, K11, K30
Date posted: April 4, 2012