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  • Level: GCSE
  • Subject: Law
  • Word count: 8003

Law - Resulting trusts

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Peter Gibson L.J. began his judgment in Drake v Whipp: "Yet again this court is asked to rule on a dispute between a man and a woman, who cohabited but were not married to each other, as to their respective beneficial interests in a property which they purchased to be their home but which was put into the man's name only. The usual lengthy litany of authorities as well as more recent additions have been recited to us and, as is notorious, it is not easy to reconcile every judicial utterance in this well-travelled area of the law." The above indicates just how frustrated the courts have become with the area of resulting trusts. The years when men did the work and women stayed home and cooked have gone but yet the law still has not changed, women now considered equal as seen in Article 5 Protocol 7 of the European Convention on Human Rights which requiring the law to treat husband and wife equally. This paper will consider the judgments made and reform offered and whether the current general law is adequate. In Re Vandervells Trust No 21 Megarry J. described what a presumed resulting trust was: "The first class of case is where the transfer to B is not made on any trust ... there is a rebuttable presumption that B holds on resulting trust for A. The question is not one of the automatic consequences of a dispositive failure by A, but one of presumption: the property has been carried to B, and from the absence of consideration and any presumption of advancement B is presumed not only to hold the entire interest on trust, but also to hold the beneficial interest for A absolutely. The presumption thus establishes both that B is to take on trust and also what that trust is. Such resulting trusts may be called "presumed resulting trusts" However in Westdeutsche Landesbank Girozentrale v Islington2Lord Browne-Wilkinson said that both types of trusts were examples of trusts giving effect to the common intention of the parties. ...read more.


The main advantage of our current system is that spouses have complete freedom of choice as to how they should own property during marriage and also freedom as to the timing of when they should make decisions regarding such matters. There is nothing to stop spouses deciding to be joint legal owners of the matrimonial home or to agree that certain chattels should belong to one party or the other. Although spouses have no automatic right of ownership of either's property during marriage that does not mean that they have no rights in respect of that property at all. If, for example, the husband is the legal owner of the home and the wife has no interest in it she does have automatic occupation rights under the Matrimonial Homes Act 1983, which is re-enacted in Part III of the Bill. Such rights are referred to in this Bill as matrimonial home rights. These rights of occupation give the wife, among other things, the right to apply for an order ousting her husband from the home. Once the rights are registered no prudent purchaser of the home will proceed to completion until such time as the rights are released. If a spouse has an interest in the home which is registered land, she will have a measure of protection for her interest, even though it is not registered, so long as she is in actual occupation of the property. If the husband should fail to make reasonable provision for the wife on his death she can make an application for such provision under the Inheritance (Provision for Family and Dependants) Act 1975. Resulting Trusts 21. In all the above cases there was either an admitted or a clearly established common intention shared by the parties that they should each have a beneficial interest in the property jointly acquired to live in together. The dispute before the court was about the proportions. ...read more.


Act 1985. Pension-sharing powers should be extended to cohabitants. Same-sex couples would have the additional option of registering their relationship, which would equate their legal position with that of married couples. The Cabinet Office Civil Partnership and Sexual Orientation Team are currently conducting an internal review of this field of law and policy, and should conclude this Autumn. Lords Lester's Civil Partnership Bill may be re-introduced in the event of inaction. 1 1974 Ch 269 2 1996 AC 669 3 cf. Tinsley v Milligan [1994] 1 AC 340, per Lord Browne-Wilkinson, and also in Westdeutsche 4 (1955) 1 ALL ER 222 5 Air Jamaica v Charlton [1999] 1 W.L.R. 1399 6 Vandervell v IRC (1966) CH 261 at 291 7 ' (1788) 2 Cox Eq 92 at p 93, 30 ER 42. 8 (1955) AC 431 9 Jordan v. Jordan NI High Court Chancery Division, 12 May 1994 10 'In a voluntary conveyance a resulting trust for the grantor shall not be implied merely by reason that the property is not expressed to be conveyed for the use or benefit of the grantee' 11 (1971) ch. 892 12 (1935) W.N. 68 13 ' JE Penner, The Law of Trusts (2nd edn, 2000), London, at p 96.) 14 Crane v Davis (1981) Times WL 187526 15 (1968) 2ALL ER 755,CA 16 Equity and the law of trusts. philip pettit 17 A New Role For Resulting Trusts, 16 legal studies 110 18 Hanbury & Martin: Modern Equity 19 (1884) L.R. 27 Ch.D. 341 20 (1874-75) L.R. 10 Ch. App. 343 21 [1946] Ch. 1 22 Pettitt v Pettitt (1970) AC 777 23 [1995] 2 F.L.R. 114 24 Pettitt v Pettitt [1970] A.C. 777, Gissing v Gissing [1971] A.C. 886 and Falconer v Falconer [1970] 1 W.L.R. 1333 25 (1994) 1 AC 340 26 Law Com. C.P. No 154 (1999) illegal transactions:the effect of illegality on contracts and trusts. 27 An Equality Impact Assessment of the Matrimonial Proceedings and Family Law Bill 2002 28 [1972] NI 59 29 (www.law.com.gov.uk; [2002] Fam Law 645 - 648) 30 (www.lawsociety.org.uk). 31 (1996) 1FLR 826 ?? ?? ?? ?? ...read more.

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4 star(s)

A good essay on this knotty trusts issue.

To bring it up to date, reference must be made to Stack v Dowden.

4 Stars.

Marked by teacher Edward Smith 23/10/2013

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