Intra-family wealth transfers: The presumption or the ‘presumption’ of advancement?
| dc.contributor.author | Mee, John | |
| dc.date.accessioned | 2024-04-05T11:26:41Z | |
| dc.date.available | 2024-04-04T18:14:42Z | en |
| dc.date.available | 2024-04-05T11:26:41Z | |
| dc.date.issued | 2024-03-17 | |
| dc.date.updated | 2024-04-04T17:14:47Z | en |
| dc.description.abstract | 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. This article examines persistent suggestions in the Australian courts, most recently in Bosanac v Commissioner of Taxation [2022] HCA 34, that the presumption of advancement ‘is not really a presumption at all’ and is merely ‘a circumstance of fact in which the presumption of resulting trust does not arise’. This concern as to the nature of the presumption has not been echoed in the courts of other common law jurisdictions. The question, therefore, arises as to whether the relevant Australian judges are in possession of an insight from which other jurisdictions could learn or, on the other hand, whether the Australian judges have been somehow mistaken in their assertions on the point. The article points out that there is an obvious reason why the presumption of advancement has been described as such by generations of judges – it has the essential characteristics of a presumption, in that proof by D of a primary fact (the existence of a relationship of advancement) triggers proof of a secondary fact (that S’s intention was to make a gift to D). The article considers the comments in the Australian case law on the status of the presumption of advancement, before analysing in turn three possible bases for denying that the presumption of advancement is a true presumption. The first involves the proposition that the existence of the relationship of advancement constitutes consideration for the transaction in question, thus preventing it from qualifying as a voluntary transaction to which the doctrine of resulting trusts can apply. This argument, made by Professor Jamie Glister in a 2011 article, involves a return to a position adopted by Lord Nottingham in the seventeenth century. The second approach, which has been supported by Professor William Swadling, suggests that the primary facts that must be proven by S in order to trigger the presumption of resulting trust include the fact that no relationship of advancement exists between S and D. If this were the law, then there would indeed be no room for the presumption of advancement to operate as a true presumption. The third and final approach involves a ‘weaker’ version (in the sense of making a more modest claim) of the thesis that the presumption of advancement is not a true presumption. Although the argument is difficult to pin down, the assumption of some Australian judges seems to be that proof by D of the existence of a relationship of advancement leads to the disapplication of the presumption of resulting trust which would otherwise have operated but that this occurs without the proof of any fact by presumption. This article considers these three approaches in turn. The article’s overall conclusion is that the presumption of advancement is indeed a presumption rather than a ‘presumption’. It is important to insist upon accuracy in an area which is plagued by confusion but this conclusion is also important for other reasons. Professor Glister and Professor Swadling’s approaches would each lead to practical results that are at variance with the current law and the third approach has the potential to undermine the whole theoretical underpinning of presumed resulting trusts. | en |
| dc.description.status | Peer reviewed | en |
| dc.description.version | Published Version | |
| dc.format.mimetype | application/pdf | en |
| dc.identifier.citation | Mee, J. (2024) ‘Intra-family wealth transfers: The presumption or the “presumption” of advancement?’, King’s Law Journal, 35(1), pp. 110–128. Available at: https://doi.org/10.1080/09615768.2024.2323798 | |
| dc.identifier.doi | https://doi.org/10.1080/09615768.2024.2323798 | en |
| dc.identifier.eissn | 1757-8442 | |
| dc.identifier.endpage | 128 | |
| dc.identifier.issn | 0961-5768 | |
| dc.identifier.issued | 1 | |
| dc.identifier.journaltitle | King's Law Journal | |
| dc.identifier.startpage | 110 | |
| dc.identifier.uri | https://hdl.handle.net/10468/15771 | |
| dc.identifier.volume | 35 | |
| dc.language.iso | en | en |
| dc.publisher | Taylor & Francis | |
| dc.rights | © 2024 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial-No Derivatives License (http://creativecommons.org/licenses/by-nc-nd/4.0/),which permits non-commercial re-use, distribution, and reproduction in any medium, provided the original work is properly cited, and is not altered, transformed, or built upon in any way. | |
| dc.rights.uri | http://creativecommons.org/licenses/by-nc-nd/4.0/ | |
| dc.subject | Wealth transfer | |
| dc.subject | Presumption of advancement | |
| dc.subject | Case law | |
| dc.subject | Trusts | |
| dc.subject | Australia | |
| dc.subject | Australian law | |
| dc.title | Intra-family wealth transfers: The presumption or the ‘presumption’ of advancement? | en |
| dc.type | Article (peer-reviewed) |
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