Jamie Glister, ‘Lifetime Wealth Transfers and the Equitable Presumptions of Resulting Trust and Gift’

Introduction
… If there is insufficient evidence of the parties’ intent, then the law’s default presumptions come into play. These presumptions are the presumption of resulting trust and the presumption of gift (also called the presumption of advancement). This Article will outline the elements of these presumptions, detailing when and how they operate. In doing so, it will compare the position in the United States with that of Commonwealth jurisdictions (most notably Australia, Canada, and England and Wales). This comparison will show that, despite their common roots, the presumptions now operate quite differently in the United States compared to the Commonwealth. The essential distinction is that in Commonwealth jurisdictions, the presumptions now operate as presumptions of law, and all they really do is locate the burden of proof at the beginning of a property dispute. In the United States, by contrast, they operate as presumptions of fact. Interestingly, the current US approach is closer to the way the presumptions worked in the early years of their existence …

Jamie Glister, Lifetime Wealth Transfers and the Equitable Presumptions of Resulting Trust and Gift, 103 Iowa Law Review 1971 (2018).

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