Presumption of advancement

From Lawiki - The law notes repository
Jump to navigation Jump to search
Lawiki for and by law students - find us on Facebook if you want to help us edit this Law Wiki.

Not professional advice - LAWIKI cannot guarantee the validity of any information




Intention

If one person provides money to another, so that the other can buy property with it, that provision may be a loan or a gift; or it may be that the donor intest to acquire a share in the property itself. The deciding factor is the intention of the donor (and, since Westdeutsche Landesbank Girozentrale v Islington LBC (1996), the recipient). Very often the intention is not clear, so it is assumed that the the donor intented to purchase a share in the property, unless there is evidence to the contrary. If that is the case, the recipient holds the donor's share of the property on resulting trust for him, in propertion to his contribution.

Presumption

In certain circumstances, however, the presumption of trust is displaced by the presumption of advancement. Where this applies, a person who wishes to assert the existence of a trust will have to lead evidence to rebut the presumption of advancement. The presumption of advancement applies in situations where one person might reasonable be expected to make a gift to another, to support or assist the recipient. An advance of money from a father to a child, for example, would raise the presumption, as would (probably) an advance from mother to child, or from someone in a parental role. It probably applies to advances of money between spouses; the less strongly the presumption applies, the less difficult it will be to raise evidence to rebut it.

Although there is a welter of case-law on this subject, the presumption of advancement mostly follows common-sense principles; occassionally, however, one comes across a completely mad decision such as Re Vinogradoff (1935)

UK LAW
Land and Property Law