Class Notes (837,822)
Australia (1,845)
Law (441)
JSB171 (400)
All (349)
Lecture

7. Resulting & Voidable trusts

5 Pages
38 Views
Unlock Document

Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
R ESULTING T RUSTS • Arise as a presumption of law, which are based on the presumed intention of the settlor o Cf a constructive trust—arises by operation of law because of unconscionability • Effect: transferee takes legal interest | beneficial interest going to the person who contributed to the purchase price • Not subject to writing requirements: s11(2) PLA Creating resulting trusts • 2 classifications— o Automatic resulting trusts: legal interest transferred but beneficial interest remains with settlor  Examples— • Failure of disposal of beneficial interest • Life estate with no remainder o Effective disposition and the benefit results back: disposition effective, but ‘truly’ the benefit results back  Eg: providing purchase money for a property, in the name of another Presumptions [X $→ Y  Y=T ← X=B] Contributing to purchase price of property: Calverley v Green (C—$18k | G—$9k  resulting trust) X Contributes to purchase price of land bought by Y or X&Y ↓ Resulting trust presumed to the proportionate value of contribution • Will not arise merely because of money being spent on the home (constructive trust may arise for failed joint venture): Baumgartner v Baumgartner; Muschinski v Dodds Money in bank accounts: Re Howes (money put in account in name of niece  resulting trust to settlor) X puts money put bank account of Y or X&Y ↓ Resulting trust presumed to the proportionate value of contributions • Rebutted where— o Joint bank account of husband & wife → presumption of advancement o Contrary intention: Russell v Scott (A → N | for care of N, balance for A on N’s death  presumption of resulting trust → rebutted by contrary intention) • Money lent in consideration for promise—not fulfilled → constructive trust: Re Bulankoff [1986] (M provides purchase money to S for promise to work on land—S disappears  constructive trust—M able to give to step-son) Rebutting the presumptions [X $→ Y  Y=O] Contrary Intention [→ no resulting trust | interest fully vested in Y] • Actual intention of the contributor that person to whom money lended have beneficial ownership: Calverley v Green  eg loan or gift Andrew Trotter LWB241 Trusts o If two or more contributors → common intention required o However, if one contributes the bulk of the money, may only need that party’s intention: Calverley v Green • Determined at the time of purchase: Calverley v Green (1984) (mortgage repayments after the date of purchase not relevant) o Look to words and conduct of the parties at or before purchase • Onus: on person who gets the property if presumption rebutted Presumption of advancement [→ no resulting trust | interest fully vested in Y] In cases of family members, intention to benefit is presumed: Bennet v Bennet (1879) • Husband → wife : Martin v Martin o wife → husband  : Moore v Whyte  although may apply as categories not closed—changing social circumstances: Calverley v Green  Discriminatory: Browne v Browne o unmarried partners : Calverley v Green (1984)  Engaged : Wirth v Wirth (man buying in name of fiancée) • Parent → child  o Parent → adult children   Limited to minors in Canada: Pakora v Pakora; Nasdem Estate v Schneider (not yet adopted in Australia) o Step-parent → step-children : Re Bulankoff [1986]; Malsbury v Malbury o Mothers → children : Nelson v Nelson (1995) (Mother → son & daughter  resulting trust for both) • Probably no presumption for siblings • Categories of advancement are not closed—extend to follow social circumstances: Calverley v Green o New categories may arise if relationship where one naturally provides for another: Wirth v Wirth per Dixon J (man → fiancée ) Rebutting the presumption [→ resulting trust in favour of X] • Actual contrary intention • Onus on person who provided the money (who will get property if presumption rebutted): Buchanan v Buchanan; Miller v Miller Reform • The presumptions are not going to be removed soon by the courts: Nelson v Nelson. o so entrenched that they cannot be discarded by judicial decision: Dullow v Dullow (to occur in legislature) • The court may be willing to modify the weight of presumptions: Calverley v Green (1984) per Deane J • Most likely—not discarded but expanded to conform with modern ideals Andrew Trotter LWB241 Trusts VOID AND V OIDABLE T RUSTS Even if trust has the 3 certainties—can still be void or voidable if— • Statutory illegality; • Public policy illegality. Statutory illegality → void • Certain voluntary settlements (upon application of the trustee in bankruptcy), within 2 years of bankruptcy: s121 Bankruptcy Act • Trade Practices Act • Income Tax Assessment Act • Defence Services homes Act 1918 Public policy illegality → void • Trusts created for fraudulent and illegal purposes under the general law • Trusts which create restrictions on the alienation of property Fraudulent and illegal purposes under the general law • Where trust has been created for an illegal or fraudulent purpose, courts will refuse to assist— o Putting property in other’s names to cheat creditors: Perpetual v Wright; Gascoy v Gascoy (Husband buys property in wife’s name to cheat creditors— H&W separated—W has presumption of advancement—H has evidence of illegal purpose to rebut presumption  evidence of illegal purpose not admissible → husband could not recover property) [→Statutory illegality]  Disposition
More Less

Related notes for JSB171

Log In


OR

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


OR

By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.


Submit