INTRODUCTION
People frequently make gratuitous transfers of wealth to, or purchase property in the name of, their spouse or child. Disputes can then arise as to the beneficial ownership of the property if relations sour within the family or if the rights of creditors supervene. In the context of certain close family relationships, equity applies a presumption of advancement, which is a rebuttable presumption that the settlor’s intention was to make a gift and which operates as a counter-presumption to the presumption of resulting trust that would apply if the parties were strangers. Where neither of the parties to the transaction gives evidence in relation to the disputed transaction, it is easy to see the significance attached to the question of which presumption equity applies. Even in cases where the parties have given evidence, the applicable presumption is potentially significant because it determines the location of the burden of proof and will be decisive if the evidence is evenly balanced …
John Mee, Intra-family wealth transfers: The presumption or the ‘presumption’ of advancement?, King’s Law Journal. Published online: 17 March 2024.
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