The presumptions of resulting trusts and advancement have become defunct in this modern age and should be abolished.

A resulting trust is a situation in which a transferee is required by equity to hold property on trust for the transferor. Under the resulting trust the settlo r retains an equitable interest in the settled property. Traditionally it used to be said that there are two situations where these trust s can arise and in Re Vandervell's Trusts (No 2) Judge Megarry J. distinguished between automatic and presumed. Presumed resulting trusts (PRT) arise in the ca se of gratuitous transfers/purchase to/for third party and are depended on the p resumed intention of the transferor, whereas automatic resulting trusts arises f rom the failure to dispose of all the beneficial interest and are imposed by a o peration of law with no regard to intention. This essay will focus on the discussion of PRT. PRT mainly arises in the followi ng two situations: 1. Purchase Money Resulting Trust Where a purchaser who is providing the purchase money has the property put into the name of another there will be a presumption that the purchaser intended the property to be held on a resulting trust for himself. In the words of Judge Eyre , "The trust of a legal estate...results to the man who advances the purchase mo ney." The presumption will also be relevant if more than one person contribute to the purchase money and the property is only conveyed into the name of one per son; the size of the beneficial interests will be determined in proportion to th e ratio of contribution. 2. Gratuitous Transfers to a Third Party Where a person transfers his property to another gratuitously, the transferee is presumed to hold the property on trust for the transferor. Rebutting PRT Notwithstanding equity's desire to protect an owner of property from losing titl e to it unless it is clear that s/he has voluntarily and effectively alienated, equity is not seeking to thwart those who do wish to give their property to othe rs. This means that generally the presumption of a resulting trust can always be rebutted by evidence of contrary intention to make a gift and not to create a t rust. The presumption may also be rebutted by setting up the presumption of adv ancement. The idea of presumption of advancement will be further discussed in th e later part. Possible Loophole of PRT PRT, if exercised improperly, can be used as a tool for illegal purpose. A settl or, by transferring his property to a third party, can temporarily give up his l egal title to the property to achieve some illegal purpose, for example to avoid himself from being taxable or to defraud creditors . Settlor subsequently can try to reassert his legal interest in the property by claiming that the property was held on a resulting trust for himself. By tradition, the clean-hand equitable maxim would be applied when a person soug ht to rebut the presumption but was required to count on an illegal act to prove that a resulting trust was intended. The court will disregard the evidence and the resulting trust would thus fail, as in Mucklestone v Brown . Since Tinsley v Milligan, the court would not strike down the case when there was mere presenc e of fraud or illegality. The Lord will look at illegal purpose of transfer (or purchase, for the purchase money resulting trust case) and see if it is an oper ative purpose and whether the illegal purpose has been effectively carried out. Role of PRT in Today's World

Some judge has casted doubt in recent time on whether the PRT has a role to play in modern world. In Calverley v Green, Judge Murphy J said the PRT is "arbitra ry" and "inappropriate in our times". Justice MeHugh in Nelson v Nelson also dis prove the doctrine of PRT and said the following No doubt in earlier centuries, the mode of thought of the property owning classe s made it more probable than not that, when a person transferred property ... th e transferor did not intend the transferee to have the beneficial as well as the legal interest in the property. But times change. To my mind, and, I think, to the minds of most people, it seems much more likely that, in the absence of an e xpress declaration ... the transfer of property without consideration was intend ed as a gift to the transferee. Certainly, leaving aside the purchase money resulting trust, as pointed out by J ohn Glover, it is possible that transfers of property are now more likely to be made by way of gift than in earlier time, given the present level of living stan dard we have and the promotion of the idea of generosity. That said, in the even more complex modern world, the motives for taking title i n the name of another without intending a gift for that person have become more diverse: legitimate purchases in the names of others may be made in order to avo id publicity; purchasers may not want vendors to know of their identity for fear that prices will be raised; or property may be purchased in the name of a cred itor as security for a debt owing by its purchaser. It seems the PRT still has i ts values in the modern world. Presumption of Advancement Where the transferor happens to stand in loco parentis to the transferee, equity has taken the view that in such case transferor has an obligation to provide fo r the transferee, with the result that transferor will be presumed to have inten ded to make an outright gift to transferee of the property so transferred or pur chased, negating the presumption of resulting trust. Like the presumption of res ulting trust, it is rebuttable by evidence that the donor intended to keep the b eneficial interest himself. In early days the law provided that a presumption of advancement were available in the following situations: from father to his child , even an illegitimate chi ld, husband to wife, stepfather to stepson, and grandfather to grandchild. I n each scenario it must be proven that the transferor had an obligation to provi de for the recipient. In contrary, the presumption of advancement did not apply where the property was transferred from the wife to husband, mother to child, or man to mistress, no matter how dependent. Unequal Treatment Based on Gender The aforesaid inconsistent rulings were drawn on the fact that equity at that ti me does not recognize in the woman, as it would have done in the man, an obligat ion to provide, hence there is no presumption of advancement. As pointed out by S Wilson, this idea is rooted in historical rationale when it was actually diff icult for women to own property at all, in which the situation was not fully lib eralized until the late nineteenth century. Along with the dominance of male ec onomic power, and where social organization was very strongly patriarchal, it wa s also the case that it was men rather than women who would be in a position to sustain "family life" through provision for children. Indeed, with the increasing financial independence of women, the presumption of advancement is diminished in modern times. In Falconer v Falconer, Lord Denning observed the following If this case had come up for decision twenty years ago, there would undoubtedly have been a presumption of advancement...that presumption found its place in the

law in Victorian days when a woman was utterly subordinate to her husband. It h as no place, or at any rate, very little place, in our law today. Lord Diplock in Pettitt v Pettitt has also said the following It would in my view be an abuse of the legal technique for ascertaining or imput ing intention to apply to transaction between the post-war generation of married couples "presumptions" which are based upon inferences of fact which an earlier generation of judges drew. Second, with the advent of the women's liberation movement in the late 1960s the re was a clear sense that women did not want to be patronized and did not want s pecial treatment; they knew that special treatment generally meant inferior trea tment, condescension and exclusion from areas of male privilege. Abolishment of Presumption of Advancement in UK On this background, the section 199 of the Equality Act 2010 was proposed in UK, aiming to abolish the presumption of advancement. J Glister in his paper found that UK government believed the existence of that presumption, which discrimina tes according to gender because it applies in relation to husbands and fathers b ut not wives and mothers, is thought to prevent UK from acceding to Protocol 7 t o the European Convention on Human Rights. Section 198 of the same act was also proposed to abolish the rule of common law that a husband must maintain his wife. Should the presumptions of advancement be abolished? I believe that even if there are arguably good reasons for abolishing the presum ption of advancement between couples, it is not obvious that this logic applies to the position of parents in respect of their children. There are indeed arguab ly ways of encouraging "parental responsibility", for example through family law which are more appropriate for the times we live in. However, the presumption a lso serve an important function of supplementing more modern approaches reinforc ing a parent's obligations towards their children. In this regard, putting the p resumption of advancement between a mother and her children (which would also ap ply in the case of same-sex female relationships) on equal footing as that subsi sting between a father and his children seems to be a better option. It provides more reinforcement and support for the doctrine of parental responsibility. Conclusion It should be emphasized that both presumptions are rebuttable and that an initia l presumption very rarely decides a case. When the initial conclusion of a presu mption is effected this is because the actual evidence happens to support that i nitial conclusion, not because of the presence of the presumption. Indeed, the presumptions have been accurately described as "long stops" that only have effec t when other facts are unavailable. Of course, there will be some cases where r eal evidence is unavailable because it is tainted by illegality, or where the wi tnesses are all plainly self-serving and unreliable, or where the relevant parti es to the transaction are all dead. In such cases the initial presumption may d etermine the outcome, but these cases are extremely rare. To sum up, I support the abolishment of presumption of advancement among the cou ples. The presumption of advancement between parents in loco parentis and the ch ildren should be retained. The same applies to the presumption of resulting trus t.