Boyle, Wilson and Bryan, ‘Equitable presumptions and inferring intention’

Over the last decade the attitude towards equitable presumptions at the highest appellate level has turned increasingly frosty. From the Supreme Court’s landmark rejection of a presumed resulting trust analysis in Stack v Dowden, to the Privy Council’s recent rejection of the Bahamian court’s use of a presumed resulting trust in Marr v Collie, a reliance at first instance on equitable presumptions is unlikely to fair well on appeal. In a recent appeal from the British Virgin Islands, Gany Holdings and ors v Zorin Khan and Ors, the Privy Council clarified the correct approach to identifying beneficial interests on the gratuitous transfer of property and confirmed that, in modern times, such presumptions should only be used as a last resort. This article sets out the facts of the Gany v Khan case as it stood before the Privy Council appeal, before briefly exploring the nature of equitable presumptions. A number of cases demonstrating the increasingly expansive approach towards ascertaining the parties’ common intention are considered and, against that background, the Privy Council’s decision in the Gany v Khan case is explained.

Alan Boyle, Richard Wilson and Zahler Bryan, Equitable presumptions and inferring intention, Trusts and Trustees, Volume 24, Issue 10, 1 December 2018, Pages 946–957, Published: 26 December 2018.

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