Open Access Library Journal
How to cite this paper: Chen, X.P. (2014) Understanding the Nature of the Presumption of Resulting Trusts. Open Access
Library Journal, 1: e593. http://dx.doi.org/10.4236/oalib.1100593
Understanding the Nature of the
Presumption of Resulting Trusts
Xueping Chen
Law School of South Central University for Nationalities, Wuhan, China
Received 3 June 2014; revised 10 July 2014; accepted 13 August 2014
Copyright © 2014 by author and OALib.
This work is licensed under the Creative Commons Attribution International License (CC BY).
http://creativ ecommon s.org/l icens es/by/4.0/
Abstract
The nature of the presumption of a resulting trust has generated a controversy, which has created
two schools of thoughts. Both schools of thoughts claim that resulting trusts give effect to the pre-
sumed intention, positive or negative. But in this paper, I take on a quite different view of point
that whether a lack of intent to benefit or a positive intent to create a trust is not related with the
presumption of the resulting trusts, which, I believe, will make it interesting to general readers.
Further, this paper thinks the presumption of a resulting trust as circumstances or facts based on
presumption, legal presumption and thinks that it can be rebutted by evidential circumstances,
which are helpful to ascertain the grounds for imposing a resulting trust. In a word, exploring the
nature of the presumption of resulting trusts will aid in the understanding the grounds upon
which a resulting trust is imposed. This article proceeds under four parts: the role of intention in
the presumption of the resulting trusts; the circumstances or facts based on presumption; a legal
presumption; rebutting by evidential circumstances.
Keywords
Presumption, Resulting Trusts, Intention, Evidential Circumstances
Subject Areas: Law, Phil os oph y
1. Introduction
A resulting trust is that property returns or “results back” to the original or rightful owner or settler who be-
comes the beneficia l owner under the r esulting trust. It is as thoug h the settler had retain ed a residual interest in
the property, albeit created by the courts. The expression “resulting trust” derives from the Latin verb, in which
resul t ’s meaning is to spring back (in effect on the original own er). Where the property is transferred subject to a
condition precedent which cannot be achieved, or the creation of an express trust beco mes void, or the beneficial
interest is not exhausted, or contributions are made to purchase price, etc., the legal owner or transferee holds

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 2 August 2014 | Volume 1 |
e593
the prope rty on trust for the settler (his estate), o r the gra ntor, or the contrib uto r .
A resulting trust is imposed by operation of law, deriving from the legal presumption. The effect on the pre-
sumption of resulting trust is that, unless rebutted, the recipient of a gratuitous transfer will hold it on trust for
the transferor. When the presumption if rebutted, whether by contrary evidence or by the presumption of ad-
vancement, t he recip ient takes the prop e rty absolutel y.
Various justificatory theories have been advanced about the nature and the grounds for imposing a resulting
trust. Despite of different vie ws on the incidence of t he resulting trusts, there are t wo main co mpeting unifying
theories. One is that all resulting trusts give effect to the presumed intention of the transferor of property [1],
described as “Swadling-Browne Wilkinson” school. The intention in this situation is positive. The other one is
that the tra nsfero r had no ac tual inte ntio n to be nefit its recip ie nt [2], described as “Birks-Chambers” school. T he
intention in this situatio n is negati ve. B oth are built on different opinions between these two schools of scholars.
The two theories generated distinct controversies on the explanation of the incidence of resulting trusts.
Different views of the nature of the presumption of resulting trusts will lead to different views as to why re-
sulting trusts arise. Accordingly, exploring the nature of the presumption of resulting trusts will aid in under-
stand i ng the gro und s upon wh ich a resulting trust is imposed.
This article proceeds under four parts: the role of i ntention in the presumptio n of the res ulting trusts; the cir-
cumstances or facts based presumption; a legal pr e sumption; rebutting by evidential circumstances.
The role of intention: A number of legal scholars and judges have attempted to justify the imposition of a
resul ti n g tr u st o n t he gr o u nd s of i nte nt io n. W he t her “Swa dl i ng -Br o wne W il kin so n” s cho o l o r “B ir ks -Chambers”
school justify the imposition of a resulting trust on the grounds of positive or negative intention. By analyzing
some cases, it can be concluded that the resulting trusts do not depend upon any evidence of what the transferor
actually intended. Moreover, the parties never consciously intended to create a resulting trust because they might
well never have heard of result ing trusts or might not have expected events to t urn out as they did.
The circumstances or facts based presumption: Resulting trusts have not been deliberately created and
arise by operation of law or, in other words, a court decision. It is up to the court to decide on the evidence
whether a re sulting trust arises or not. The presumption of resulting trus ts is circumstances-based. The presump-
tion of resulting trus t applies, mai nly relying on the circ umstances o r facts. If a plaintif f proves that the pr operty
is ve sted in t he de fenda nt alo ne but t hat the p lainti ff pro vided p art of the purcha se money, or voluntar ily tr ans-
ferred the property to the defendant, the plaintiff establishes his claim under a resulting trust unless either the
contrary presumption of advancement displaces the presumption of resulting trust or the defendant presents evi-
dence to rebut the presumption of resulting tru st. In fact, all r esultin g trusts arisi ng b y operatio n of law belong to
a single “irreducibly dissimilar” category of legal response. The finding of resulting law by operation of law at
first owes nothing to a transferor’s actual intentions. Despite its name, the idea of a presumed resulting trust
does not depend upon any evidence of what the transferor actually intends. Such trusts are not inferred or im-
plied. There is no inference of intentions made from evidence before the court. Instead the y fo llo w fro m the po-
sition where there is no admissible evidence of what was intended.
Legal presumption: A legal presumption provides that if a party proves a certain fact known as the prelimi-
nary fact then another fact (the presumed fact) will also be taken to be proved, unless evidence is adduced by the
opponent to “rebut” the presumption. Only if the primary facts can be proved, a resulting trust can be presumed.
The pr esumption of the resulting tr ust is a true and legal p resumption. As a legal pre sumption, the presumption
of the resulting trust needs to be proved by a claimant with the primary fact that the transfer or contribution was
made to the benefit of the defendant that is a fixed and uniform condition. The primary facts are regarded as an
evidential vehicle for the imposition of a resulting trust by the court. The transferring of the property is con-
ceived as a fact which, along with others, calls for the creation of rights by operation of law, and sa ve s the op-
pos ing evidence s to the fa ct.
Rebutting by ev identia l cir cu mstances : The content of the pr esumption of a result ing trust is that a r esultin g
trust a rises in t he first pl ace from the gratuitous or vo luntary tra nsfer o r purchase of prope rty in anothe r’s name
or j oint names i n the abse nce of clear evidence to the contrary. As mentioned above, the presumption of result-
ing trust is irrelevant to the intention of parties. The presumption of resulting trust is just that the transferee is
presumed to hold the property on trust for the transferor or the purchaser, which is made from some facts and
sometimes needs to be evidenced. The presumption of a resulting trust is occasionally displaced by evidence of
the contrary facts or a counter-presumption of equity, that is, the facts for presumption can be rebutted by the
evidences to the contrary and by the strength evidences adduced. The evidential circumstances of the actual case

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 3 August 2014 | Volume 1 |
e593
can rebut the initial concl usion of the presumptio n by operation of la w. The presumed resulti ng trust arises from
numerous fact situations which are actually very different, and thereupon the evidential circumstances of rebut-
ting the presumption are also different.
2. The Role of Intention in the Presumption of the Resulting Trus ts
Resulting trusts arise in order to fill a gap of ownership and come into existence whenever there is a gap in
beneficial ownership. Resulting trusts operate to fill the gap in the beneficial ownership of property where an
express trust fails. The presumed resulting trust also arises, in the absence of evidence to the contrary, when
property is purchased in the name of another, or property is voluntarily transferred to another e.g. A purchases
property which is conveyed in the name of B, or A transfers property to B. In these circumstances B prima facie
holds the property on trust for A [3].
A presumed resulting trust is a prima facie rule of evidence which is capable of being rebutted. When there is
no definitive evidence in the first place concerning the transferor’s real intention, but merely a purchase of
property or the voluntary transfer of property in the name of another, equity prima facie considers the transferee
as a trustee for the transferor. In short, the transferee is presumed to obtain a nominal interest in the property.
The rule is arbitrary but the presumption has the advantage of determining the ownership of the beneficial inter-
est, s ub j ect to evidence to the contrary [4]. In ge ner a l, in a presu med r e sult in g t r ust t he d e s tina tion of the be ne fi-
cial interest is unclear on the face of the instrument affecting the transfer. In an effort to reduce the element of
doubt concerning the beneficial interest the court implied or presumed a trust in favor of the transferor. The ra-
tionale behind this principle is that Equit y is inclined to lean against a gift.
A number of legal scholars and judges have attempted to justify the imposition of a resulting trust on the
grounds of intention. Whether “Swadling-Browne Wilkinson” school or “Birks-Chambers” school justify the
imposition of a resulting trust on the grounds of positive or negative intention. In his work, William Swadling
claimed that resulting trusts were imposed on grounds that the transferor of property intended to create a pre-
sumed intention resulting trust [5]. His work was very muc h influential in Lord Browne-Wilkinson’s judgment
in Westdeutsche Landesbank Girozentrale v Islington LBC, where it has already been observed that the House
of Lords held that a resulting trust responds to the presumed intention of the person transferred property. In
Westdeutsche Landesbank Girozentrale v Islington London Borough Council, Lord Browne-Wilkinson stated
that resulting trusts arise to fulfill the implied intentions of the parties: “Both types of resulting trust are tradi-
tionally regard ed as examples of trusts gi ving effect to the commo n intentions of the par ties. A resulting trust is
not imposed by law against the intentions of the trustee (as is a constructive trust) but gives effect to his pre-
sumed intention” [6].
In Standing v Bowring (1885) 31 Ch D 282, the court explained that “trusts are neither created nor implied by
law to defeat the i ntentions of d onors or settlers; the y are created o r implied or are held to result i n favor of do-
nors or settler s in order to c a rry out, and give effect to their tr ue intentions, expressed or implied” [7]. A s for this,
if a resulting trust is imposed on the grounds of donors or settlers’ intention, can there be any difference between
an express trust and a resulting trust? Not at all.
An exp re ss tr ust is cre ated o n the in tentio ns o f donor s or settler s, called “intentio nal tr usts” be cause the settle r
by effectively exercising his po wers to create a trust has produced what he intended. The intention plays an im-
portant role in the creation of express trusts. A trust can be known as an e xpress tru st just owing to its c reation
on the deliberate intention and act of the settler, when he effectively exercises his powers of ownership to create
a trust [8]. The reupon the first re quirement of the crea tion o f an express trust is t hat there is an intent ion on the
part of settler to create a trust. It is an express trust that arises in response, and to give effect, to the intention to
create a trust, so without such an intentio n there is clearl y no basis for finding an express trust. What matter s is
the sub s tanc e of i nt e nti o n and not the form such a s the la ng u age use d t o exp r ess t hat i nte ntion. A s Me gar ry J put
it in Re Kayford Ltd (1975) 1 WLR 279, “it is well that a trust can be created without using the words ‘trust’ or
‘confidence’ or the like: the question is whether in substance a sufficient intention to create a trust has been ma-
nifested.” Thus, the settler must demonstrate his or her intention either through the language used, or by his
conduct that he intended to create a trust. In Staden v Jones, the Court of Appeal emphasized that in creating a
trust, words or acts done by the settler must have intended to have that meaning. Therefore, an express trust
arises out of the settler s’ or grantors’ expr ess intention. Subj ect to any for malities imposed by statute, this inten-
tion may be expressed wholly or partly, orally or by conduct or in writing. In order to ascertain the ter ms of t he

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 4 August 2014 | Volume 1 |
e593
trusts (such as the beneficiaries and their interests, the trust property and the trustees) the court is required to
construe the evidence which manifests the intention of the creator of the trust. If a transferor’s actual intention
can be discerned, it may be that an express trust is established, on the basis of sufficient evidence that this was
what the transferor actually intended, for it will have been the transferor’s actual and sufficiently manifested in-
tention to create a trust in this way, not anything else. The effect to this intention is that an express trust will
have been declared. Moreover, usually doubtful words or precatory words can create a trust if they satisfy three
certainties, and they are express, declared trusts. Thereupon, the court concludes that the settler sufficiently ma-
nifested an intention to declare the trust based on the evidence available. If a resulting trust arises by virtue of
the unexpressed or implied intention of the settlers or grantors, “unexpressed or implied” intentions can be
proved by conduct or doubtful words or precatory words so that the conduct or doubtful words or precatory
words can conver t the intentions i nto express intentio ns of settlers or grantor s. As such, the id ea that a resulting
trust responds to the i nt entions of the par t ies obsc ure the border ing of an express trust and a resulting trust.
However, in some situations where a resulting trust arises, property will be regarded as subject to a trust de-
spite the absence of any express intention on the part of the settler. In fact, in those situati ons a settler creates a
trust without inte nding to do so at all. Mo reover, in certain circumstances t he resulting tr usts arise by operatio n
of law, impo sed b y law, which is to say that the law itself c reates an equitable title for beneficiaries in the prop-
erty of a legal owner, [9] not that the parties intend to c reate a resulting trust. William S wadling advocated that
presumed resulting trusts are ones that the presumed intention is operative to create a trust, which is proved by
the application of an evidentiary presumption, that is, a legal presumption of fact [10]. Just as Chamber argues
that a number of different cases where a presumed resulting trust arose simply cannot be explained on the basis
that the law rebuttably presumes an inte ntion to cr eate a trust, since in these cases the evidence established that
the tr ansfero r or co ntributo r had no suc h intent ion and yet t he trust a rose an yway. Take “The Venture” [11] for
exa mple, The plaintiff, Percy Stone, proved that he had contributed to the purchase price of a yacht, title to
which was transferred to his brother, Andrew, who had since died. A resulting trust is imposed for Percy de-
pending upon the bare fact of Percy’s contribution. Farwell LJ, giving judgment for the Court of ap peal, held.
When it is once proved that Percy Stone advanced ￡550 of the ￡1050 purchase-money for this yacht he
thereupon became entitled to fifty-five 105ths.That being the presumption, it was, of course, open to the other
side to displace that presumption, but it was not incumbent upon Percy Stone to prove more than that. It was for
the other side to d isplace that presumption if they could, but they offered no evidence at all [12]. In this case, a
resulting trust is operated by la w, which was not established o n the inte ntion of the parties a t all.
The case of Mehta Estate v. Mehta Estate taken into consideration, a husband had purchased certain invest-
ments in the name o f his wife, but a gain the re was no p ro of of the i nte ntion s of t he husb an d, or his wife, as bo th
had perished in a plane crash. T here is no need to show whether there was an intention or not.
In Vandervell v IRC (1967) 2 AC291, the facts clearly show that there was a complete absence of intention,
real or presumed. In this case, Vandervell transferred an option to purchase shares from the Royal College of
Surgeons to a trust company without defining the benefactors of that option, the court held that the option be-
longed to Vandervell under a resulting trust. Indeed the only intention of Vandervell was to divest himself of
any interest in the property being transferred, no intention to a res ul ting trust.
Also in Re Vinogradoff (1935) WN 68, a testatrix transferred ￡800 worth of a war loan into the joint ac-
count of herself and her granddaughter of then four years old. The testatrix continued to receive the dividends on
the loan until her death. On her death the court held that the granddaughter held the war loan on resulting trust
for her grandmother. There is nothing on these facts to suggest that the intentions of the grandmother were to
make her granddaughter a trustee of the property she had transferred in their joint names.
In Air Jamaica v Charlton (1999) 1 WLR 1399 (PC), when a company pension fund was wound up, its con-
trib utor s ar gued fo r a r etur n of thei r out sta nd ing co ntr ibuti ons, eve n tho ugh t he y had r ece ived their expe cted en-
titlement. In this case, Clause 4 of the trust deed stated that no moneys which had been contributed by the com-
pany shall in any circumstances be repayable to the company. Under Section 13 of the pension plan the compa-
ny could end the plan at any time and the court stated that this had in fact happened. The provisions of the
pension plan tr ust deed which covered what should happen to any surplus in this event were void as infringing
the rul e s a gai n st p er p etui tie s. I n t hi s ca se , a re s ult i ng trust ar o se i n fa vo r o f the c o ntr ibuto r s, with the assoc iation
members as its trustees. Lord Millett explained the basis for the imposition of the resulting trust in the face of
clause 4 of the pension scheme was an absence of intention to pass a beneficial i nterest on the part of t he trans-
feree. Although Lord Millett’s approach was further applied by him in Twinsectra Ltd v Yardley (2002) 2 All

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 5 August 2014 | Volume 1 |
e593
ER 377, the Court of Appeal in this case was clearly of the opinion that the beneficial i nterest under a Q uistclose
trust remained in suspense until the stated purpose of the loan has been carried out or had otherwise failed. This
view was rejected in the House of Lords on the grounds that it did not fit comfortably with established principles
of equity “equity abhors a beneficial vacuum” and that the beneficial interest in property must belong to some
person at all relevant times. In essence, Lord Millett’s approach is strained with the negative intentions of parties.
Whether in Air Jamaica v Charlton or in Twinsectra Ltd v Yardley, the imposition of the resulting trusts were
irrelevant to the intentions of parties, positive or negative, not as decisive as to the ownership of the be neficial
interest as that on the creation of an express trust. A resulting trust is different from an express trust in that the
par ti es i nvo lve d d o no t knowingl y a nd in te nt io na ll y c re at e a resultin g tr u st. T he re fo re a r es ult in g t r ust ar i se s “b y
operation of law.”
In the wo rk, Le wi n on Trusts, Mowbra y cate go r ie s resu lting trusts as ar isin g b y operatio n of law [13]. “T r us t s
arising by operation of law are trusts which are not declared by any person, either by clear or doubtful words”
[14] Not as in an express trust, the parties involved do not knowingly and intentionally create a resulting trust.
As a matter of logic, the presumption that the recipient or transferee should hold the property transferred gra-
tuitously on trust for the transfe r or is just a legal consequence of a legal operation, rather than a legal recognition
of the e ffectiveness of an individual’s sufficientl y manifested in respect of the disposi tion of hi s own property.
Resulting trusts don’t arise from such a recognition, or from any inference from evidence actually of both parties’
intentions be fore the court. Just as Lor d Diplock described in Petitt v Pettitt [15]:
“Imputing an intention to a person whenever the intention with which an act is done affects its legal conse-
quences and t he e vidence d oes not d isc lose what was the ac tual inte ntion with which he d id it … A pres umptio n
of fact is no more than a consensus of judicial opinion disclosed b y reported cases as to the most likely inference
of fact to be drawn in the absence of evidence to the contrary.”
As such, it is greatly an operation of law, in the absence of evidence to the contrary. It is clear that the pre-
sumption of fact described here is not one made from evidence before the court of the actual intention of the
particular transferor concerned. It is an imputation onto the known facts drawn from the court’s experience. The
presumption from the facts and circumstances or events can resolve the matter, rather than the inference arising
only in the absence of the evidence that does not disclose what was the actual intention of the transferor. Such
trusts do not depend upon any evidence of what the transferor actually intended. Moreover, the parties never
consciously intended to create a resulting trust because they might well never have heard of resulting trusts or
might not have expected events to turn out as t hey did [16].
3. The Circumstances or Facts Based Presumption
Why the proprietary interest has “jumped back” to the transferor when a resulting trust arises?
Resulting trusts have not been deliberately created and arise by operation of law or, in other words, a court
decision. It is up to the court to decid e on the evidence whether a resulting trust arises or no t.
Equity abhors a beneficial vacuum. It is just in response to injustices arising from ownership of property. A
resulting trust arises from the circumstances in which the ownership of property will not be clear because a
transfer of property has failed or is incomplete, or because a group of people have contributed to the acquisition
of that prope rty without allocatin g title clearly. In such situations, the do ctrine of resulting trusts oper ates to re-
solve those questions of ownership. Accordingly, where a settler conveys or transfers property to trustees, but
fails to dec lare the trusts upon which it is to be held ; or where the e xpre ssed tr usts fa il a lt oget her o n the gro und,
for instance, of uncertainty, or non-co mpliance with statutory require ments as to writing; or where they fail par-
tially on similar grounds, or because the trusts expressed only dispose of a part of the equitable interest; in any
such case the entire equitable interest, or such part thereof as has not been effectively disposed of, remains
vested in the settler or, in technical language, is said to result to him, and the proper ty is accor dingly said to be
held by the trustees upon a resulting trust for him.
The pr esumption o f resulti ng trusts is circ umsta nces -based. The presumption of resulting trust applies, mainly
relying on the circumstances or facts. If a plaintiff proves that the property is vested in the defendant alone but
that the plaintiff provided part of the purchase money, or voluntarily transferred the property to the defendant,
the plaintiff establishes his claim under a resulting trust unless either the contrary presumption of advancement
displaces the presumption of resulting trust or the defendant presents evidence to rebut the presumption of re-
sulting trust. Therefore, in cases where the presumption of advancement does not apply, a plaintiff can establish

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 6 August 2014 | Volume 1 |
e593
his equitable interest in the property [17].
In the situation where property is purchased in the name of one person, but two people have in actual fact
contributed to the purchase price of the property, the legal owner of the property will be viewed as holding the
property on trust for themselves and also for the other person who contributed to the purchase price. In the sce-
nario the beneficial interest in the property can be seen to revert to the persons who contributed to its purchase, a
resulting trust c omes into being properly.
Wherever a gift of personal property is made, the presumption will be made in equity that the gi ft is to be held
on re sultin g trust for the p erso n maki ng that gift, i n the absence of clear evidence to the contrary. The idea is to
protect the more vulnerable against those who would take advantage of gifts. In Fowkes v. Pascoe (1874-1875)
LR 10 Ch App 343: Those that allege that other people, especially in this position, give them large sums of
money, must prove it, and prove it to the satisfaction of a Court of Justice that they are entitled to that sum of
money. For example, if A legally transfers property to B and receives nothing in return, unless there is evidence
to rebut, namely to prove it is a gift, it is presumed that B, who holds the property legally, hold it on resulting
trusts for A, who has the equitable interest. It is based on the deep-seated idea in the law that someone must give
consideration, something of value, in return to gain any righ t to p rope rty. An equitable maxi m says, “Eq uit y will
not assist a volunteer.” A volunteer is someone who has not given consideration. The idea that sensible infe-
rences may be drawn from all the circumstances is the approach taken nowadays: In reality the so-called pre-
sumption of a resulting trust is no more than a long stop to provide the answer when the relevant facts and cir-
cums ta nces fail to yield a solution (Vandervell v IRC (1967) per Lord Upjohn; see also Pettit v Pettitt (1970);
McGrath v Wallis (1995)) [18].
In some situations, people are unable to prove the actual, intentional arrangement that was supposed to give
them a n int erest. T he only evidence one needs to take advantage of the evidentiary presumption is evidence that
one contributed to the purchase price of property.
In Dyer v Dyer (1788) 2 Cox Eq Cases 92 [19], Simon Dyer had bought property in Wiltshire jointly in the
names of himself, his wife and younger son. Mr Dyer had paid the whole of the purchase price for the property.
On the d ea th o f Mr D ye r , hi s e ld er so n a rgue d t hat t he p r o per t y sho uld b e he ld o n r es ultin g trust for t he estate of
the father because he had put forward the whole of the purchase price for it. This would have meant that the son
would have benefited from the property as one of the heirs to his father’s estate. However, the court found that
the pur chas e had been a gi ft in fa vor o f the wife and you nger so n and t hat the re was there fore no resul ting tr ust
in the father’s favor on basis of the presumption of advancement in fa vor of the father’s wife and child. In this
case, Eyre CB stated “the trust of a legal estate, whether freehold, copyhold, or leasehold; whether taken in the
name s o f t he purchaser s and other joi ntl y, o r in the names o f o t her s wit ho ut tha t of the p ur c has er ; whe t he r i n t he
one name or several; whether jointly or suc cessive—results to the man who adva nc es the p ur cha se -money”. And
the parties ’ rela tionship is a fact which is rele vant to the applicatio n o f the presumption of result ing trust.
In Vandervell v IRC [20], there was a complete absence of intention, real or presumed, just the facts of this
case clearly show that that any beneficial interest in shares was held by a settler, Vandervell, which he was
transferrin g to t he Royal Co lle ge of Surgeons, and he held the subsequent option to purchase those shares which
were eventua ll y hel d b y the V a nd er vel l T r ust C o mpa ny fo r the b e ne fit of hi s c h ild r en. I nd e ed , the only intent ion
of Vandervell was to divest himself of any interest in the property being transferred. In fact, Vandervell would
seem to have formed no relevant intentions about the destiny of any beneficial interest in the option. When
Vandervell transferred an option to purchase shares from the Royal College of surgeons to a trust company
without defining the benefactors of that option, the court held that the option belonged to Vandervell under a
resul ting t rust [21]. If Vandervell’ actual intentio n were sufficie nt to be evidenced, the option should be held on
an express trust, instead of a resultin g trust.
In Re Vinogradoff, where a testatrix transferred ￡800 worth of a war loan into the joint account of herself
and he r gra nd daug hter who was then four years old. The testatrix continued to receive the dividends on the loan
until her death. On her death the court held that the granddaughter held the war loan on resulting trust for her
grand mothe r. T here is no thing on these facts to suggest that t he intent ions o f the gra ndmot her were to make he r
granddaughter a trustee of the property she had transferred in their joint names. The court imputed a resulting
trust just on the gro unds of the transferring fact.
These cases reveal the general principle that a presumption of resulting trusts in favor of someone depends
upon s ome fac ts, suc h as p a ying the purc has e-money for a transfer of property to another, not parties’ intention.
These can also evidence that a resulting trust is just from the legal presumption not depending upon the parties’

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 7 August 2014 | Volume 1 |
e593
intention, at least when arising of it. Just as Robert Chambers argued, “If the resulting trust was created by the
presumed intentio n that it should exist, it could not prop erly be applied whenever that inte ntion was impossible,
improbable, or unenforceable” [22]. But next, Robert Chambers made a self-contradictory argument: “The pre-
sumption of resulting trust and advancement are inferences of the provider’s intention and it is lack of his or her
intention to benefit the recipient which attracts the resulting trust itself.” By reference [23] to all relevant facts
and circumstances, the matter can not be determined, it can resort to a resulting trust which is expressed in terms
of a presumptio n of a trust for the transferor. As such, the law a ssumes that a res ulting trust will be imposed on
any unconscionable circumstances.
Altho ugh Dr. Chamber s insist s that res ulting tr usts do not dep end upon a n implied i ntenti on to cr eate a tr ust,
he insists that the pr ovider of prop erty did not inte nd to ben efit the recip ient. T his in fact admitted t hat resultin g
trusts depe nd upon an implied negative intention to create a trust, be c ause the transferor’s intention is relevant to
demonstrate t hat there was no intention to benefit the recipient.
In fact, all re sulting trusts arising by operation of law, belong to a single “irreducibly d issimilar” categor y of
legal respon se. The finding of resulting law b y operatio n of law at first o wes not hing to a transfero r’s actual in-
tentions. Despite its na me, t he id ea of a p resu med res ulting tr ust does not d epend upon any evidence of what the
transferor actually intended. Such trusts are not inferred or implied. There is no inference of intentions made
from evidence before the court. Instead they follow from the position where there is no admissible evidence of
what was intended [24].
In the leading case Vandervell v IRC, Lord Upjohn argued that “if the beneficial interest was in A and he fails
to give it a way effectively to another or others or on charitable trusts it must re main in him” [25]. So in this case,
the beneficial interest not being transferred effectively to another or others or on trust is just a fact or circums-
tance, which doesn’t mean that the transferor has the implied intention to create a trust or not to benefit the
transferee. Moreover, “the equitable, or beneficial interest, cannot remain in the air: the consequence in law
must be that it re mains i n the set tler ” [26]. ha mber s tho ught , “T he i ntere st wh ic h the settl er has at t he e nd o f the
story, as a beneficiar y of a resulting trust, is an equita ble interest which is different from the legal ownership he
or she ha d a t t he b e ginni n g” [27]. Just as Lord Browne-Wilkinson re mar ked,” A per son so lel y entitled to the full
beneficial ownership of money or property, both at law a nd in e q uit y, do e s no t e nj o y an e q uit ab le int er es t in t ha t
prop erty. The legal title carries with it all rights. U nless and until there is a separa tion of the legal and equitable
estates, there is no separate equitable title” [28]. And it is als o subject to Swadling’s sig nificant criticism.
Mellish LJ in Fowkes argued: If there is evidence to re but the presumption, then… the C ourt must go into the
actual facts. And if we are to go into the actual facts, and look at the circumstances of this investment, it appears
to me utterly impossible… to come to any other conclusion that that the … investment was made for the purpose
of gift and not for the purpose of trust. It was either for the purpose of trust or else for the purpose of gift; and
therefore any evidence which shows that it was not for the purpose of trust is evidence to show that it was for
the purpose of gift.
In fact, in the case of Fowkes, whatever purpose was the investment made is nothing significant for the pre-
sumption of the resulting trust, the presumption was made from the actual facts and the circumstances of the in-
vestment. The courts draw a presumption from the presence of other facts (namely, a gratuitous transfer between
parties in a certain relationship to one another). A particular fact is presumed which leads to the conclusion that
a re sulting tr ust has arise n. It is the fa cts tha t justi fy a fi nding o f a tr ust of the pro perty tr ansfe rred . The j ustifia-
bility of particular presumptions depends upon the facts.
In Re Vinogradoff (1935) WN 68, the presumption of a resulting trust depends upon the fact of the gratuitous
transfer. Accordingly, the court held that the presumption of resulting trust had not been rebutted, and so the
child held the property on trust for the grandmother.
In Vandervell v Inland Revenue Commissioners (1967) 2 AC 291, 313, the presumption of a resulting trust is
justified by the mer e facts of the transfer and the p arties’ rel ations hip exce pt for further evidence b eyond t he fact s.
In the Pettitt v P ettitt (1 97 0) A C 777 , the pr es umptio n of a dvance ment a pp lies in li ght o f the fact s of trans fers
by fathers t o their chi ldren and by husbands to their wives, c ertainly not whe re a mother transfers property to her
children or a wife to her husband.
4. Applying the Presumption of Result ing Trust Is a Legal Presumption?
In the S horter Oxfor d Engli sh Di ctiona ry, a p resumpti on is d efined as “The t aking o f some thing for grant ed; a l-

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 8 August 2014 | Volume 1 |
e593
so, that which is presumed; assumption, assumed probability, supposition, expecta tion” [29]. O n the b asis o f the
basic fact, we assume the presumed fact. The assumption of the truth of anything until the contrary is proved.
4.1. Explanation of the Concept of a Legal Presumption or a Presumption of Fact
A true presumption should prove the primary facts until the contrary is proved. In law, there are presumption of
facts and presumption of law.
The presumption of facts is that circumstantial or presumptive evidence consists of proved facts from which a
disputed fact is sought to be inferred; when a similar set of facts has repeatedl y given rise to the same conclusion,
the inference is called a presumption of fact. The facts proved must obviously be relevant to the disputed fact
[30]. The presumption of facts involves the ordinary process of logical inferences or judicial reasoning about
facts [31]. So-called presumption of facts is not true presumption, being, in reality, nothing more than com-
mon-sense inferences drawn from what is usually circumstantial evidence. It is not a true presumption because
there is no requirement that the tribunal of fact adopts the presumption and assume the presumed fact once the
preliminary facts are established, any more than there is for an y other type of telling circu mstantial evide nce. It
serves to direct the tribunal of fact to possible inferences that might be drawn from the evidence [32]. A pre-
sumption of facts is invariably rebuttable. Where a presumption of facts applies, on the proof or admission of a
fact, another fact may be presumed. But unlike rebuttable of law, a presumption of facts does not shift the per-
suasive or evidential burden. Strictly speaking, the term “presumption of facts” is a misnomer. It describes the
readiness of the court to draw certain repeated inferences as a result of common human experience [33].
A presumption is a rule of law which provides that if a party proves a certain fact (known as the preliminary
fact) then another fact (the presumed fact) will also be taken to be proved, unless evidence is adduced by the
opponent to “rebut” the presumption, or, in other words contradict the presumed fact [34]. Legal presumption
can be divided into two types: “persuasive” and “evidential”. Some presumptions are termed as “persuasive” or
“compelling” in that once the primary fact has been proved, the presumed fact can only be rebutted by adducing
evidence to the appropriate standard of proof. Other presumptions are classed as “evidential” or “provisional” in
that they may be rebutted by adducing evidence sufficient to amount to a prima facie case [35]. As to the former,
for example, once a child is proved to have been born in wedlock, it is presumed to be legitimate unless the oth-
er side prove non-access or incapacity by the husband; or when two people die at about the same time, the
younge r i s p re su med t o have survive d t he e ld er , u nles s it i s p r o ved tha t the e ld er s ur vi ved the youn ge r. As to t he
latter, the presumption that the testator was of testamentary capacity, the relevant fact or circumstance is often
said to raise a “presumption” or “prima facie” case. The presumption of legitimacy is a persuasive legal pre-
sumption. The presumption of legitimacy provides that, once it is established that a woman was married at the
time that her child was conceived or born, the child is presumed to be the offspring of her husband. Where the
presumption operates, it creates a legal presumption, so that once it comes into operation, the opposing party
will have to reb ut t he p resump tio n on the b ala nce of pr oba bilities. T he pre sumption of de a th is a e videntia l le gal
presumption. The presumption of death needs to prove three primary facts as following: a) that no acceptable
evide nce e xists tha t the p erso n has b een ali ve dur ing a c ontinuo us pe riod of seve n years or mor e; b) that per son
who a re likel y to ha ve hear d fr om him d uring t hat pe riod have not he ard fr om hi m; and c) all due inqui res ha ve
been made to locate the subject but those inquires have failed.
The difference between a presumption of law and a presumption of fact in the following respects [36]:
1) A presumption of law derives its force from law, while a presumption of fact derives its force from com-
mon s ense and logi c. Ho weve r, many o f t he fo r mer have int ri nsic logic al weig ht, b ei ng indeed derived from the
latter, yet there are others which have none. Thus, after a person has been absent for six years and 364 days there
can be no presumption of death, yet the addition of one more day’s absence will enable the presumption to be
applied.
2) A presumption of law applies to a class the conditions of which are fixed and uniform; a presumption of
fact applies to i ndividual cases, the co nditions of which ar e inconsiste nt and fluct uating. Thus, the presumptio n
of death arises whenever seven years; unexplained absence is proved; but when it is necessary to establish the
time of the death more precisely, the question must be decided on the evidence adduced in each specific case.
3) A presumption of law is made by the court, and in the absence of opposing evidence is conclusive for the
party in whose favor it operates and for the purpose for which it operates; a presumption of facts results in infe-
rences drawn by the tribunal of fact, who may disregard them, however cogent.

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 9 August 2014 | Volume 1 |
e593
4.2. The Presumption of Resulting Trust Is a True Presumption and a Legal Presumption
Resulting trusts arise in some contexts. One is arising where some attempted disposition of that property has
failed, such as the failure to declare a trust, the failure of the trust, the failure of a specific purpo se, whose func-
tion is either to restore the equitable title in property to its previous beneficial owner, or to recognize that such
title remains with that p erson in eq uity. Ano ther is ar ising wh ere one p erson have provid ed a prop erty to others
from the absence of consideration and any presumption of advancement, such as voluntary conveyance or trans-
fer, purchase in the name of another, whose purpose is to prevent others from seeking unconscionably to deny
the propr ietary rights of the providers of the pr operty, which is used by equity to resolve situatio ns in which the
parties’ intentions cannot be proved conclusively [37]. Another is arising where a trust has been performed and a
surplus remains, such as maintenance surplus, disaster fund surplus, unincorporated associations’ dissolution
surplus and pension fund surplus, whose desirability of the resulting trust can depend on the context in which the
trust is created [3 8] . In the first scenario, it is called an automatic resulting trust, because of that failure that the
property, being unable to stay with the trustees and having nowhere else to go, automatically reverts to the orig-
inal owner of the property, while in the next two scenarios, they are called presumed resulting trusts, which arise
on the grounds of some particular facts or circumstances.
4.2.1. True Presum p tio n
Just as Willia m Swadling clai med that some presumption is not true presumption, the presumption of innocence
is not a true presumption, just a basic procedural rule allocating the incidence of the burden of proving the basic
elements of a crime to the prosecution in criminal cases, without need to prove the primary facts [39]. But the
true presumptions differ from that. S.184 of the Law of Property Act 1925 provides that where two or more
per so ns ha ve died i n circumstances rendering it uncertain which of them survived the other, such deaths shall be
presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived
the elder. The presumption of the order of the d eat h of the se nior ity i s a t rue pr esump tio n, i n whic h the pro of o f
the basic fact is conclusive proof of the truth of the presumed fact. The presumption of legitimacy is also a true
one that the proo f of the basic fact is sufficient to establis h the truth of the presumed fact unless the other party
can prove, to the requisite standard of proof, that the presumed fact is untrue. The effect of a true presumption is
that if the basic fact is proved then this casts onto the other party the burden of adducing evidence in order to
show that the presumed fact is untrue [40].
The presumpt ion o f resulti ng trus t is defi nitel y a true p resu mption, whic h is der iving fr om that a primary fact
is proved. A resulting tr ust will be p resumed if the follo wing primary fact is proved: tha t fact is that the p erson
has provided property to another, not as a gift or as an advancement. For example, where Emma has contributed
to the purchase of a property in Tom’s name, if it can be shown that money provided by Emma was just a gift or
a loan to Tom, the presumption that Emma received a beneficial interest in the property will be rebutted and no
resulting trust will be inferred.
Indeed, as a true presumption, a resulting trust arises from the proof of the primary facts. In Gissing v Gissing
(1971) AC 886, Violet and Raymond Gissing were a married couple and the family home was in Raymond’s
name, He took out a mortgage to pay for it and also had a loan from his employers. Violet’s contributions were
￡220 from her savings to pay for a lawn and furniture. Later on she contributed from her earnings to the
housekeeping and paid for her own and her son’s clothes. In 1961, Raymond left Violet for a younger woman.
Violet alleged that he told her “Do n’t worr y about the house: it’s your s.” Later Raymond lost his job and wanted
to sell the house and Violet claimed that she owned a share of it. In this case, the wife must advance material
evidences on the facts of her contributions to the property to justify the court in imposition of a resulting trust.
But the wife “has made no initial co ntribution to the cash depo sit and legal charges and no dir ect contribution to
the mortgage installments nor any adjustment to her contribution to other expenses of the household which it can
be inferred was referable to the acq uisit ion o f t he house” [41], her limited, indirect, financia l contributio ns were
not enough to gain a share by giving rise to a result ing trust.
In Ho d gson v. Marks (1971) 1 QB 234 (CA), an elderly homeowner, Mrs Hodgson, decided to take in a lodg-
er for company and to help out with payment of the household bills. Mr Evans moved in and had soon found his
way i nto M rs Ho dgso n’ s co nfi denc e, maki ng hi msel f use ful ar ound t he ho use a nd l ooki ng a fter her fina ncial af-
fairs for her. Mrs Hodgson’s relatives were suspicious of Mr Evans’s motives and tried to persuade Mrs Hodg-
son to as k Mr E vans t o l ea ve t he ho use . M rs Ho d gso n pa id no at te ntio n to t heir a dvi ce , howe ver , and eventually,

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 10 August 2014 | Volume 1 |
e593
under continual pressure from her relatives and fearing that they would find a means of removing Mr Evans
from the property, took the rather drastic step of conveying the property into Mr Evans’s name on the under-
standing that she would remain the beneficial owner of the property. Unfortunately the relatives’ suspicions
were well founded and Mr Evans subsequently purported to sell the property to a third party, Mr Marks, without
Mrs Hodgson’s knowledge. The primary fact is that the transfer had clearly never been a gift to her lodger. The
fact showed that Mrs Hodgson provided that property, but not as a gift and Mr Evans could not present the op-
pos ing evidence. As such, the court held t hat there was a clear resulting trust in favour of Mrs Hodgson.
4.2.2. A Legal Presumption
Legal presumptions are not necessarily the result of a process of logical reasoning, such as the presumption of
death, only if the primary facts can be proved. So is the presumption of a resulting trust. As a legal presumption,
the presumption of the resulting trust needs to be proved by a claimant with the primary fact that the transfer or
contribution was made to the benefit of the defendant that is a fixed and uniform condition. Tinsley v Milligan
(1994) 1 AC 340 taken for example, two women purchased a home as co-hab itin g lo ver s, b y mut ual a gr ee ment,
the property was registered in Ms Tinsley’s name as the sole proprietor so as to enable Ms Milligan to make
false social sec urit y clai ms, th ereb y benefitin g bo th parties . O n t he b r ea kd o wn o f t heir r elations hi p , M s Mi ll i ga n
counterclaimed for an order for sale claiming that the house was held on trust for both of them equally. The
House of Lords held 3:2 that the defendant could nonetheless establish her interest by way of the presumption of
resulting tru st. Due to the fact , as a fixed and uni form condition, that M s Milligan mad e a direct contrib ution to
the purchase price, she acquired an equitable proprietary interest by the presumption of a resulting trust. And
Lord Browne-Wilkinso n explained: If the plaintiff proves that the property is vested in t he defenda nt alone but
that the plaintiff provided part of the purchase money, or voluntarily transferred the property to the defendant, the
plaintiff establishes his claim under a resulting trust unless either the contrary presumption of advancement dis-
places the pre sum pti on of r esulti ng trus t or th e def endan t lea ds evi denc e t o re but the pr esumpt ion of result ing trust.
It is a well-established principle of equity that , in the absence of a contrary evidence, where property is pur-
chased in the name of some other person it will be held on a resulting trust for the person who has paid for the
purchase. In Bull v Bull (1955) 1 QB 234 (CA), Mrs Bull and her son bought a property at 101 Rishden Gardens,
Ilford, Essex in 1949. Both mother and son contributed to the purchase price for the property, but the son pro-
vided the greater part of the money and the property was conveyed into his sole name. In April 1953, the son
married and it was arranged that his mother should keep two rooms in the house whilst he and his wife would
have the rest. Soon afterwards, however, differences arose between the mother and her daughter-in-la w and the
son told his mother to leave the house. The mother contended that, despite the house being in her son’s sole
name, s he ha d a r ight to live i n the p ro per ty by vir tue of her co ntri butio n to t he pur chase o f it. T he c ourt agre ed,
find ing tha t she had no t made a gi ft of t he purc hase mone y to her son a nd tha t ther e was therefore no presump-
tion of advancement, but rather that there should be a resulting trust imposed in her fa vor. In making his judg-
ment Lord Justice Denning confirmed that, whilst the son was undoubtedly the legal owner of the house, the
mother and son owned the house together in equity. The mother was therefore entitled to a share of the house
proportionate to her contribution to the purchase price.
Accordingly, in the situation of purchase of property in another’s name, the presumption of resulting trusts i s
based on the facts of the initial contributions to the purchase of the property. In Burns v. Burns (1984) Ch 317, a
couple Valerie and Patrick Burns, who had lived together for almost 20 years and who had children together, al-
though they were not actually married. The house they lived in was paid for by Patrick with part cash and part
mortgage. The mortgage was paid off with Patrick’s earnings while Valerie stayed at home to look after the
house a nd chi ldren. When Va ler ie retur ned to work she u sed her own ea rnin gs to bu y furn iture, fixtur es and fi t-
tings for the house and did some painting and redecoration, although her money was not needed to pay for any
of the household expenses. The relationship broke down and Patrick sought a declaration as to whether Valerie
had a beneficial interest in the house. The Court of Appeal held that Valerie had no i nterest in the house: she had
made no contrib utions referable to the ac quisition of an interest in the property. The fact that the relationship had
lasted 19 years was irrelevant in claiming an interest in the property under a resulting trust. In the situation of
purchasing in another’s name, the primary fact of financial contribution must be proved, which is a fixed and
uniform condition in this circumstance. In this case, general child-rearing and household tasks do not count as
the equivale nt o f a financial contribution, no resulting trust a r ose.

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 11 August 2014 | Volume 1 |
e593
In a word, where a property is taken in another’s name alone, if one makes on “real ” or “substantial” finan-
cial contribution to wards eithe r the purchase p rice, depo sit or mortgage install ments b y means of which the fa m-
ily home was acquired, then she or he is not entitled to any share in the beneficial interest in that home even
thou g h s he o r he was maint ai n i ng the family, decorating the house, laying a patio, keeping house, improving the
house, giving birth to and looking a ft er and helping to bring up the chi ldren.
Nonetheless, i n certain sit uatio ns, if the par ties sta nd in cert ain relatio nship s the pr esumpt io n of resu l ti ng trust
is re placed by the presu mption of adva ncement. In the situation of purcha s e of prop erty in another’s name wher e
certain relationships exist between the transferor and the transferee, such as a husband and a wife or a father and
children, t he presumption of advancement [42] displaces the presumption of resulting trusts.
In Bennet v. Bennet (1879) 10 Ch D 474, a mother Ann Bennet, transferred the sum of ￡3000 to her son,
Phil ip Be nnet, who was in fi nancia l diffi cult y. Philip subse quent ly went b ankr upt, and the t rustee in b ankr uptc y
claimed what was left of the money. Mrs Bennet’s lawyers claimed that there was no presumption of advance-
ment in this case, it bei ng a c ase o f loa n bet ween mot her a nd son, and that t he mo ney sh ould b e ret urned to her
as it was held by her son for her on a resulting trust. The court upheld the mother’s claim, in any event, there
was evidence in this case that mother transferred the money as a loan, not as an advancement.
Certainly, in respect of married couples, the position has been somewhat alleviated by section 37 of the Ma-
trimonial Proceedings and Property Act of 1970, which states that: Where a husband or wife contributes in
money or money’s worth to the improvement of real or personal property in which or in the proceeds of sale of
which either or both of them has or have a beneficial interest, the husband or wife so contributing shall, if the
contribution is o f a substa ntia l nature and subject to any agreement to the contrary express or implied, be treated
as having then acquired by virtue of his or her contribution a share or an enlarged share, as the case may be, in
that beneficial interest. B ut this section doe s not assist unmarr ied coup les. T hus, in Bur ns v Burn s, Valer ie was
not entitled to bring proceedings under the matrimonial legislation because they were unmarried.
In Stack v Dowden (2007) 2 All ER 929, Baroness Hale based her arguments on the maxim that equity fol-
lows the la w. So that where the le gal ownership i s in joint names, t he presumption is t hat the beneficia l interest
will also be jointly owned.
To sum up, the primary facts are regarded as an evidential vehicle for the imposition of a resulting trust by the
court. The transferring of the property is conceived as a fact which, along with others, calls for the creation of
rights by operation of law. The primary fact is that the transferring of the property should not be subject to a gift
by imposing a resulting trust, which is the fixed and uniform condition from which a resulting trust arises save
the opposing evidences to the fact.
5. Presum pt io n’s Rebutting by Evidential Circumstances
5.1. The General Survey of the Cont e nt Presumed and Rebutted
A legal presumption can be rebutted by evidential circumstances. Take the presumption of death for example,
can be rebutted in case that the other party is able to adduce some evidence that the person is still alive. In this
scenario, the content of presumption which will be reb utted is “death” and “The person is still alive” is the evi-
dential circumstances. In the scenario of the order of seniority, in light of the provision of S.184 of the Law of
Property Act 1925 that where two or more persons have died in circumstances rendering it uncertain which of
them survived the other, such deaths shall be presumed to have occurred in order of seniority, and accordingly
the content of the presumption is that the younger shall be deemed to have survived the elder, which can be re-
butted only when the fact that the elder had survived the younger can be prove d.
As to the resulting trusts, the content of the presumption is that a resulting trust arises in the first place from
the gratuitous or voluntary transfer or purchase of property in another’s name or joint names in the absence of
clear evidence to the contrary. Because equity presumes that the property belongs to the person who advances
the pur chase mone y, that i s, in the a bsence of evid ence to r ebut the presu mptio n. Thus, the presumptions of re-
sulting trust are a ssumptio ns t hat the ownership of beneficial interests belong s to the providers.
The presumption of a resulting trust is a prima facie rule of evidence which is capable of being rebutted. In
the situations of the gratuitous or voluntary transfer or purchase of property in another’s name or joint names,
equity prima facie considers the transferee as a trustee for the trans feror. The transferor is presumed to have re-
tained the beneficial interests and the transferee is presumed to obtain a nominal interest in the property. The
presumed consequence of the resulting trusts can be prevented from materializing in appropriate circumstances.

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 12 August 2014 | Volume 1 |
e593
In other words, if there is o ther evidence, the courts will look at that evidence and may come to a different con-
clusion. The presumption is subject to evidence to the contrary, that is, it can be rebutted by the facts of indeed a
gift, a loan and it can also be replaced by the presumption of advancement [43]. The function of the presumption
of a resulting trust is to put a rule into place by the courts in a bid to protect the more vulnerable against those
who would take advant age of them [44].
What counts a s evide nce in c onsiste nt with t he pre sumptio n of a re sulting trust? In line with the two scho ols
of thoughts mentioned above, the content of presumption rebutted is different. On the view of “Swadling-
Browne Wilkinson” school, where one gratuitously transfers property to the other, the presumption is that one
intended the o ther to hold that p roperty on trust for him. On this basis, unless the presump tion is rebutted, a re-
sulting trust ari ses to give e ffect to one’s i ntention. On the view of “Birk s-Chambers” school, in such situations
it is presu med that one d id not intend t he other to ta ke the pr operty beneficial ly, unless no n-beneficial inte ntion
is rebutted. In the situation that one transfers property to the other wrongly believing he owes to the other, the
two schools ha ve quite different outco mes to whether a re sulting trust arises. In fact, since the o ther gives noth-
ing in return for the money, the presumption of resulting trust is definitely imposed. But on the first view, the
presumption depends upon one’ intention to create a trust i n his favor, which will be rebutted by the fact that one
is inte ndi ng to disc har ge a d eb t that he wro ngl y be lieve s he o wes to the other. Ther efore, no resultin g trusts will
arise. By contrast, on the second view, the presumption depends on non-beneficial intention, which can not be
rebutted by the fact that one is intending to discharge a debt that he wrongly believes he owes to t he other, a re-
sulti ng tru st irre buttab ly ar ises. In Wes tdeut sche La ndesb ank Gi roze ntrale v Isli ngton Lond on Bo rough Co uncil
(1996) AC 669, the claimant bank paid significant sums of money to the defendant local authority under a con-
tract which turned out to be void since it was beyond the powers of the local authority. When this was discov-
ered, the bank argued, inter alia, that there was a resulting trust of the money it had paid to the authority under
the void contract. Since the contract had no legal effect, nothing had been given i n retur n for the money, hence
the presumptio n of resulti ng trust was raised. Ho wever, on the vie w that the p resumption was of a lack o f intent
to benefit the transferee, this had not been rebutted, since the bank did not inte nd the aut hor it y to ha ve the mo n-
ey in the circumstances.
As mentioned above, the presumption of res ulting trust is irrelevant to the inte ntion of par ties. The presump-
tion of resulting trust i s just that the transferee is pr esumed to hold the prop erty on trust for the transferor or the
purchaser, which is occasionally displaced by evidence of the contrary facts or a counter-presumption of equity.
Thus, in the situation of a contribution to the purchase price of property, where there is evidence that money was
provided by way of loan, there can be no room for the presumption of resulting trust.
The upshot of this can derive some support from the case of Vandervell v IRC (1967) 2 AC 291, in 1958
Vandervell wished to found a Chair in Pharmacology at the Royal College of Surgeons. He planned to transfer
share s i n Va nd ervell Pro d ucti o ns Lt d t o the C ol le ge, i n who se fa vo r d ivi d end s o n the shares wo uld sub sequently
be declared. As a charity, the College enjoyed fiscal privileges, the attraction of the transaction being that the
dividends would not give rise to tax liability. The shares were to be transferred subject to the option to repur-
chase in favour of Vandervell Trustees Ltd, a company administering trusts connected to Vandervell’s family
and business enterprises. Once the dividends were paid, the shares could be retrieved by Vandervell Trustees
Ltd. Vandervell was sure that if the optio n was not vested in hi m he could avoid an y liabilit y for tax. Until 1961 ,
the College was in receipt of dividend payments on the shares. The Inland Revenue sought to claim surtax on
the dividends, arg uing that Vandervell had failed to decla re a trust of the option, the be nefit must be held on re-
sulting trust for Vandervell. In this case, because of a lack of the necessary evidence, the r esulting trusts which
followed is not in any way a reflectio n of any intention of Mr Vandervell. The fact is that Mr Vandervell co uld
not actually have had any such intention, which can be proved by the clear evidence. But the presumption is
made fro m some facts which sometimes need be evidenced. The evidences to the contrary can rebut the facts for
presumption. The evidential circumstances of the actual case can rebut the initial conclusion of the presumption
by operation of law.
5.2. Evidential Circumstances of Rebut ting
The presumption of a resulting trust can be rebutted by the strength evidences adduced. The presumed resulting
trust arises from numerous fact situations which are actually very diverse, thereupon the evidential circums-
tances of rebutting the presumption are also diverse, but they can be classified into the following types.

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 13 August 2014 | Volume 1 |
e593
5.2.1. Voluntary Transfer to Another
The presumption of a resulting trust from a voluntary transfer to another can be rebutted by the evidence in favor
of a g ift.
In Fowkes v Pascoe (1875) LR 10 Ch App 343, the court held that, though the presumption of resulting trust
applied, it was clearly rebutted by the fact that there was simply no plausible explanation for the purchase except
that Mrs Baker made a gift of the stock to Pascoe, the circumstances and the relationship between the parties
taken into con sideration. As James LJ put it:
The evidence in favor of gift and against trust is absolutely conclusive… The lady had ￡500 to invest; she
had already large sums of stock standing in her own name, besides other considerable property. Is it possible to
reconcile with mental sanity the theory that she put ￡250 into the names of herself and her companion, and
￡250 into the names of herself and [Pascoe], as trustees upon trust fo r herself?
In this case, on the evidence provided to the court it was held that the money was indeed a gift, and the pre-
sumption of a resulting trust was rebutted. However, had there been no substantial evidence to prove this, a re-
sulting trust would certainly have been imposed.
In Re Vinogradoff (1935) WN 68, the court held that the money should be held on resulting trust for the estate
of Mrs Vinogradoff, there being no e vidence of a gift t o rebut the presumption of a resulting trust.
In Walker v Walker, the public declaration by a father t hat he just gave his newly wedded son the money to
set up a home was sufficient to show that he benefited his son by way of gift. Just as Browne-Wilkinson L.J.
said, “Once … the father had said that he was making a gift to the son, any claim based on the resulting trust
must fail” [45]. Therefore, the gift can be the evidential circumstance to rebut the presumption of voluntary
transferrin g re sulting trust.
In Boyce v Boyce (1849) 6 Sim. 476, A testator left his three houses to his widow and further instructed her to
give one house to Maria (his daughter), whichever one Maria chose, and the remaining 2 houses to Charlotte.
However, Maria died before choosing the house. Consequently, the houses were held on resulting trust for the
testator’s residuary estate. The rebutting evidence is t hat the fact of the selection of the house before death, but
it’s impossib le .
5.2.2. Purchase in the Name of An oth er
The principle of “he who pays, owns” [46] is important in arisin g as to the situatio ns of purc hase in the name of
another or joint names. It is assumed that neither party made a gift of their contribution to the purchase price,
which can be rebutted by the evidence to the contrary. Here the resulting trust is presumed to arise in the ab-
sence of evidence to the contrary or rebutted by the contrary evidences.
In the Venture (1908), a resulting trust is presumed depending upon the bare fact of Percy’s contribution with
nothing establishing on the evidence. But the presumption of the resulting trust can be displaced by the other
party’s offering the contrary evidences.
In Laskar v Laskar (2008) EWCA Civ 347, (2008) 1 WLR 2695 a mother and daughter bought a house to-
gether , which t he y let to t ena nts. T he value of the house wa s £7 9,5 00 b ut it was boug ht at a dis count of £50 ,0 85
as a result of t he mot he r ’s previous occupation of it as a secured tenant. The daughter paid £3400, £43,000 came
from a mortgage loan, and the mother paid the re mainder. The mortgage was paid from rental income which was
paid to the mother. The daughter claimed a joint beneficial interest in the property. It was held that, where
members of a family purchased property in their joint names, there was a presumption of equal interest follow-
ing Stack v Dowden, but this did not apply where the property was purchased as an inve st me nt whe n the benefi-
cial interest wo uld reflect thei r resp ective contributio ns to the purc hase price by virtue of a resulting trust a naly-
sis. Co nseque ntly, the mothe r’s discount was reflected in her interest. Since the mortgag e loan was taken out in
their joint na mes and they were jointl y and severall y liable f or repayment the y had an equ al interest to the exte nt
of the mortgage loan. It was not argued that the presumption of advancement applied, and the Court suggested
that that was correct, apparently because the daughter was over 18 and managed her own financial affairs. The
cour t co nclud ed tha t t he da ught er s houl d ha ve a o ne-third beneficial interest and this was considered to be a fair
result in the absence of evidence to the contrary.
5.2.3. Fund Surplus
In the case of non-charitable fund surplus, the presumption of a resulting trust for the donors or subscribers or
contributors can be rebutted by the evidence to the contrary.
In the case of Re Abbott fund (1900) 2 Ch 326 (ChD), a fund to support two elderly women was raised by

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 14 August 2014 | Volume 1 |
e593
their friends and relatives. After both had died, it was not clear how to distribute the surplus money, which was a
substantial sum. The fund could have been construed as a gift to the women, in which case the surplus would
have gone to their estates. However, Stirling J. decided that there was no evidence that this is what the donors
intended, and that the surplus shou l d be held for them on resulting trus t .
Re Gillingham Bus Disaster Fund (1958) Ch 300, a fund was raised to pay for funeral expenses, etc., of a
group of army cadets who had been killed in a bus crash. Since the families of the cadets had private-law actions
against the bus company, the amount raised was far in excess of what was required. The question then arose how
to distribute the surplus. Ha r man J followed the decision o f Re Abbott (1900), which ha d he ld tha t t he sur p l us o f
a non-c harita ble b enevo lent f und sho uld be held on t rust fo r its sub scrib ers. Si nce the bulk o f the mo ney in Gi l-
lingham had been raised by donations from the public, it would clearly be very difficult to return the surplus.
However, there was no doubt that in principle a resulti ng trust could be imposed on the surplus in favor of the
subscri bers except for the contrary evidence. And so it was.
In re west sussex constabulary widows fund (1971), althoug h t he ge ne ra l p r inc ip le —t hat sur plus f unds sho uld
be returned to subscribers—was upheld, the Court of Appeal declined to rule that funds raised from public dona-
tions should be held on trust for the public donors. The Court doubted that Gillingham should really be read as
imposing such a requirement anyway. Where the contributions were from specific, identifiable bequests, then
the s urplus would be held on re sult ing trust for the donors’ estates.
In the case of Re Bucks Constabulary Fund (No. 2), the fund, which was registered under the Friendly Socie-
ties Act 1896, was made up of voluntary contributions from its members, for the relief of widows and orphans of
deceased members of the Bucks Constabulary. Under s.49(1) of the 1896 Act, property belonging to a registered
friendly society was vested in trustees for the benefit of the members and those claiming through them. There
was no provision for distribution of the asse ts of the fund in the event of the societ y being wound up.
In April 19 68 the Bucks Co ns tabular y was a mal gamated with other constabularies to form the T ha me s Va l ley
Constabulary, and in October 1968 the society was wound up. The trustee applied to court to determine how the
funds were to be distributed.
The surplus assets were held on trust for the members of the society at the time of its dissolution, to b e distri-
buted among them in equal shares.
Air Jamaica v Charlton (1999) 1 W.L.R. 1399, When a company pension fund was wound up, its contributors
argue d for a return o f their outs tandi ng cont ributi ons, e ven t hough t hey had rece ived thei r exp ected entitlement.
The argument, in a sense, was the long-sta nding o ne ab out what sho uld happ en to t he sur plus funds of an unin-
corporated association when it is dissolved. Because the contributors had been paid off in full, it was argued for
the Crown that the surplus mone y was Bona vacanti a.
Lord Millet sta ted that, alt hough the p revai lin g vie w i s t ha t t he s urp l us fu nd s o f a n uni nc orporate d a sso c iat io n
were not required to be returned to their contributors (e.g., Re West Sussex Constabulary Widows Fund (1971)),
where there is a small number of well-defined c ontributors it is just to return their excess contrib utions.
It was suggested that the mechanism to give effect to this decision was to find that a resulting trust arose in
favor of the contrib utors, wit h the associatio n members as it s trustees. Although many academics (notabl y B ir k s
and Chambers) have argued for an expanded role of resulting trusts in restitution, thi s view has not found fa vor
with t he House of lords in rece nt year s (se e W est De utsc he v Isli ngto n 1 99 6), a nd this p ar t of the jud gment ma y
have to be regarded as out of line with prevailing authorities. However, if a resulting trust is not the right me-
chanism to give effect to the decision that the unincorporated association holds its surplus funds on trust for its
contributors, it is not clear what else is.
5.2.4. Presumption of Advancem ent
In some situations where equity recognizes that there is an obligation of conscience owed by the transferor “to
advance” or to support the welfare of the transferee, there is no presumption of resulting trust because the trans-
feror is presumed to transfer the property freely to the transferee on account of the relationship of obligation.
Where the presumption of advancement applies, it effectively reverses the presumption of resulting trust, in that
equity presumes that a gratuitous transfer from one to the other takes effect as a gift rather than a trust. Section
60(3) of the Law of Property Act 1925 provides: 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.

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 15 August 2014 | Volume 1 |
e593
In Murless v Franklin (1818) 1 Swans 13 at 17, Lord Eldon described the duty to advance as being a, “species
of natural obligation to provide…”. In Goodfriend v. Goodfriend (1972) 22 D.L.R. (3 rd) 699 at 703, Spence J.
explains, “to make a gift of the subject matter of the transfer to the transferee”.
This presumption arises when certain relationships exist between the transferor and the transferee. The rele-
vant relations hips involve a moral obligation on the part o f the transferor to wards the transferee .T ransfers give
rise to the pre su mp tion include father to legitimate child and husb a nd to wife.
If the transfer took place before s 199 of the Equality Act 2010 comes into force, where the transferor was the
father of the transferee or the husband of the transferee or stood in loco parentis to the transferee the presump-
tion of resulti ng trust was replaced by the presumption of adva ncement [47].
In McGrath v Wallis (1995) 2 FLR 114, a house was acquired for joint occupancy by a father and son in the
sole name of the son. The purchase price was provided partly by proceeds of sale of the fa ther’s p revio us house
and partly by means of a mortgage. There was no evidence that the father made a gift of the house to his son. On
the basis of all the surrounding circumstances, the Court of Appeal held that the presumption of advancement
was rebutted, and that the father acquired an 80 percent interest in the property by way of resulting trust. They
were readily rebutted by comparatively slight evidence.
In Wa rr en v G urne y (1 94 4) 2 All E R 47 2, a fathe r p urc hase d a hous e in t he na me o f his d aug hter prior to her
wedding. He retained the title deeds until his death. The Court of Appeal held that the presumption of advance-
ment was rebutted by evidence that the retention of the title is not a gi ft, not as an advancement.
In Re Gooch (1890) 62 LT 384 Sir Daniel Gooch transferred shares into the name of his eldest son. The son
paid the dividends from the shares to his father, who also retained the share certificates. Kay J held that the pre-
sumption of advancement was rebutted by evidence that the shares had been transferred to qualify the son to
become a director of the company, and that no gift had been made.
In Simpson v Simpson (1992) 1 ELR 601, a husband transferred his bank account into the joint names of
himself and his wife. The property was held, after his death, by his wife on resulting trust for his estate, which
can be rebutted by the fact that the husband did make a gift.
6. Conclusion
Both schools of thoughts on the nat ure of the presumed resulting trusts claim that resulting trusts give effect to
the presumed intentio n, positive or negative. In fact, what is given effect is eq uity’s imputation of a legal result.
In some circumstances, equity does not recognize an effective disposition of property, but instead imposes a re-
sulting trust b y operation of law. Moreover, there seem to be a handful cases in which resulting trusts have been
found which can not b e explained on the basis that the pre sumption is a lac k of intent to benefit o r a positive in-
tent to create a trust. Neither a lack of intent to benefit nor a positive intent to create a trust is related with the
presumption of the resulting trusts.
References
[1] See Westdeutsche Landesbank Girozentrale v Islington LBC (1996) AC 669,708. See Swadling, “A Hard Look at
Hodgson v Marks”, Rickett and Grantham, “Resulting Trusts—A Rather Limited Doctrine”, Payne, “Quistclose and
Resulting Trusts”. Peter Birks and Francis Rose, Restitution and Equity, Vol. I, Mansfield Press, 4.
[2] Birks and Chambers, etc. (1997) Hold This Restitutionary View. “All Resulting Trusts Come into Being Because the
Provider of Property Did Not Intend to Benefit the Recipient.” See Chamber, R., Resulting Trusts, Oxford.
[3] Ramjohn, M. (1995) Sourcebook on Law of Trusts. Cav e ndish Publishing Lim ite d, London, 201.
[4] Ramjohn, M. (1995) Sourcebook on Law of Trusts. Cav e ndish Publishing Lim ite d, London, 241.
[5] Swadling, W. (1996) A New Role for Resulting Trusts. Leg al Studi e s , 16, 110-131 .
http://dx.doi.org/10.1111/j.1748-121X.1996.tb00402.x
[6] Westdeutsche Landesbank Girozentrale v Islington London Borough Council (1996) AC 669 AT 708.
[7] Standing v Bowring (1885) 31 Ch D 282 at 289.
[8] Hudson, A. (1999) Principles of Equity and Trusts. Cavendish Publishing Limited, London, 53-54.
[9] Penner, J.E. (2008) The Law of Trusts. 6th edition, Oxford University Press, Oxford, 87.
[10] Swadling, W. (2008) Explaining Re sulting Trusts , LQR 72-80.
[11] (1908) T he Ve nture . 218.

X. P. Chen
OALibJ | DOI:10.4236/oalib.1100593 16 August 2014 | Volume 1 |
e593
[12] (1908) T he Ve nture . p. 230.
[13] Mowbray, W.J. (1964) Lewin on Tr us t s . 16th Edition, Sweet & Maxwell, London, 8.
[14] (2000) Trusts Which Are Inferred from Doubtful Words, for Example, (Sometimes Called “Precatory Trusts”) Are
Therefore Express, Declared Tru st s. In Such Circumstan ce, the Court Construes the Evidence Available and Concludes
That the Settler Sufficiently Manifested an Intention to Declare the Trust . In: Birks, P. and Rose, F., Eds., Restitution
and Equity, Vol. 1, Mansfield Press, Toronto, 8.
[15] Pettitt v Pettitt (1970) AC 777,823; Murphy and Deane JJ. Further the Discussion In Calverley v Green (1984) 155
CLR 242,264-266.
[16] Clements, R. and Abass, A. (2011) Equity and Trusts. Oxford University Press, Oxfo r d, 329.
[17] Milligan, T. (1994) 1 AC 371.
[18] Penner, J.E. (2008 ) The Law of Trusts. 6th Edi t ion, Oxford University Press, Oxford, 90.
[19] Dyer v Dyer (1788) EWHC Exch J8, 2 Cox Eq Cas 92.
[20] Vandervell v Inland Revenue Commission ers (1967) 2 AC 291.
[21] Panesar, S. (2010) Explorin g Equity and Trusts. Pear son Education, Limited, Upper Sadd le River, 277 .
[22] Chambers, R. (1997) Resulting Trusts. Clarendon Press, Oxfo r d, 34.
[23] Chambers, R. (1997) Resulting Trusts. Clarendon Press, Oxford, 35.
[24] Simpson, E. ( 2000 ) On the Nature of Resulting Trust s : The Vandervell Litigation Revisited. In: Birks, P. and Ro se, F.,
Eds., Restitution and Equity, Vol. 1, Mansfield Pr ess, Toronto, 21.
[25] Vandervell v IRC (1967) 2AC 313.
[26] Vandervell v IRC (1967) 2AC 329.
[27] Chambers, R. (1997) Resulting Trusts. Clarendon Press, Oxford, 52.
[28] Westdeutsche Landesbank Girozentrale v Islington LBC (1996) AC 706.
[29] Taylor, A. (2000) Principles of Evidence. Ca v e ndi s h Publ ishing L im i te d, London, 39.
[30] Nokes, G.D. (1967) An Introduction to Evidence. 4th Edi t io n, Sweet & Maxwell, London, 74.
[31] Murphy, P. an d Glover, R. (2011) Murphy on Evidence. 12th Edition, Oxford Universit y P r ess, Oxford, 686 -687.
[32] Durston, G. (2011) Evidence Text and Materials. 2nd Edition, Oxford University Press, Oxford, 143.
[33] Phipson (2005) On E videnc e . 16th Edition, Sweet & Maxwell, London, 136.
[34] Murphy, P. an d Glover, R. (2011) Murphy on Evidence. 12th Edition, Oxford Universit y P r ess, Oxford, 73.
[35] Cooper, S., Murphy, P. and Beaumont, J. (1997) Cases and Materials on Evidence. 4th Edition, Blackstone Press Li-
mited, Bondi Junction, 72.
[36] Phipson (2005) On E videnc e . 16th Edition, Sweet & Maxwell, London, p. 136.
[37] Thomas, G. and Hudson, A. (2010) The Law of Trusts. Oxford Un iversity Press, Oxfor d, 728.
[38] Haley, M. and McMurtry, L. (2011) Equity & Trusts. Sweet & Maxwell, London, 297-306.
[39] Swadling, W. (2008) Explaining Resulting Trusts. Law Quarterly Review.
[40] Bagsh aw, R. and Cross, R. (1996) Outline of the Law of Evidence. Butterworths, Lond on, 37.
[41] Gissing v Gissing (1971) AC 886 at 909.
[42] The Presumption Will Be Abolished by s 199 of the Equality Act 2010 for All Transfers etc. Made after the Section
Comes into Force.
[43] The Presumption Which Runs Contrary to the Presumption of a Resulting Trust Is That People in Some Certain Rel a-
tionships Will Be Presumed, Subject to the Presentation of Evidence to the Contrary, to Have Made an Ou tright Gift to
the Recipient. Therefore, i n Such Situations There Will Be No Presumption of a Resulting Trust Arising in Favour of
the Grantor. If the Transfer Was Made before s 199 of the Equality Act 2010 Comes into Force.
[44] Warner-Reed, E. (2011) Equity and Trusts. Pearson Education Limited, Upper Saddl e R iver, 176.
[45] Haley, M. and McMurtry, L. (2011) Equity & Trusts. 3rd Ed i t io n, Sweet & Maxwell, London, 309.
[46] Duddington, J. (2006) Essentials of Equity and Trust Law. Pearson Education Limited, Upper Saddle River, 159.
[47] Edwards, R. and Stockwell, N. (2011) Trusts and Equity. 10th Ed i ti on, P earso n Edu cation Limited, Upper S addle Riv-
er, 253 .