[Pippaaa]

this should be ridiculously straightforward but i can't wrap my head around it -

a father purchases property in his daughter's sole name, contributing half the purchase price in cash, and the other half by a mortgage that he makes the daughter responsible for.

- the situation is within the realm of advancement (father-child)
- advancement can be rebutted (Lavelle v Lavelle) where there is evidence that the intention was not to make a gift
- if advancement is rebutted then it's a PRT

my instinct was that you could rebut the presumption of advancement pretty easily by saying that the daughter was responsible for the mortgage, which would suggest against an outright gift of the property - but now i'm not sure. any help?!

edit: now thinking that you can't rebut the presumption - Lavelle v Lavelle the evidence used to rebut was tax avoidance - no such indication here so it should be a straightforward application of presumption of advancement?

[vahik92]

(Original post by Pippaaa)
this should be ridiculously straightforward but i can't wrap my head around it -

a father purchases property in his daughter's sole name, contributing half the purchase price in cash, and the other half by a mortgage that he makes the daughter responsible for.

- the situation is within the realm of advancement (father-child)
- advancement can be rebutted (Lavelle v Lavelle) where there is evidence that the intention was not to make a gift
- if advancement is rebutted then it's a PRT

my instinct was that you could rebut the presumption of advancement pretty easily by saying that the daughter was responsible for the mortgage, which would suggest against an outright gift of the property - but now i'm not sure. any help?!

edit: now thinking that you can't rebut the presumption - Lavelle v Lavelle the evidence used to rebut was tax avoidance - no such indication here so it should be a straightforward application of presumption of advancement?

I think presumption of resulting trust is something like a question of fact, even in very similar situations court may feel that in one case there was an intention to make a gift yet in another it may find there wasn't an intention to make a gift. The critical question for the court to find the answer to is what in fact the father intended and any evidence/facts can be used to answer the question. The best thing to do on exam in such cases is to analyse both possibilities i.e. these are the facts indicating the father intended to make a gift, those are the facts indicating there wasn't any intention to make a gift, if the court decides there was intention of making a gift then... [continue assuming the father made a gift]... and if the court holds there was no intention to make a gift, then...[continue as if there is resulting trust].

By the way, the presumption of advacement is now abolished by the Equality Act 2010, so on the exam make sure you know when the trust was created, if it was created after the Act came into effect then there is no presumption of advancement. (And if the question is silent on this, analyse both possibilities).

[Festina lente]

(Original post by vahik92)
By the way, the presumption of advacement is now abolished by the Equality Act 2010, so on the exam make sure you know when the trust was created, if it was created after the Act came into effect then there is no presumption of advancement. (And if the question is silent on this, analyse both possibilities).

s199 Equality Act 2010 isn't yet in force.