Q8 Tutorial-resulting trust

What happens when the son or daughter transfer property to the mother and father? Whether this issue raises the question of presumption of advancement? Discuss this issues the light of the case of Tiah Juan Kim v. Goh Swee Fang & Ors Singapore [1993] Mallal’s Digest para 1343 The doctrine of presumption of of advancement dates back to the 18 th century to a time when ‘ husbands and fathers were deemed responsible to provide for and support their wives and children. This application allowed married women to own property enabling them to transfer it to their next of kin. Normally when a person passes the legal title of a property to another without intention to pass to the beneficial interest, then it is presumed that the other person holds the title on resulting trust. In other words, when someone gives property to another in this manner it is only a temporary measure. The exception to resulting trust is the presumption of advancement, which applied when the relationship between the holder of the title and the recipient is so close that it is presumed the holder did intend to pass both title and beneficial interest. Presumption of advancement also has been referred as presumption of a gift. However where the evidence establishes that a gift was intended, there is no need to apply either presumption. Likewise if there is additional evidence to support other intentions then the presumption of advancement does not apply. In this case the first issue whether it give rises to the question of presumption of advancement is on the intention of the transferor. Where the intention was not expressed or known. The law presumes that resulting trust in favour of the transferor or grantor. If it has been ascertained that the transferor or grantor intended that the grantee should not take beneficial interest, then presumed resulting trust would rise. This matter was stated very succinctly by Lord Upjohn in Vanderwell v. Inland Revenue Commissioners [1967] 2 AC 291 at 312;[1967] 1 All ER 1:.. “ where A transfers property to B otherwise than for valuable consideration it is a question of intention of A in making the transfer whether B was to take it beneficially or on trust and, if the latter, on what trusts. If , as a matter of construction of the document transferring the legal estate, it is possible to discerns A’s intentions, that is an end of

the matter and no extraneous evidence is admissible to correct and qualify his intentions so ascertained.” But if, as in this case (a common form share transfer), the document is silent, then there is a said of resulting trust in favour of A. but this only a presumption and is easily rebutted, all the relevant facts and circumstances can be considered in order to ascertain A’s intentions with a view to rebutting this presumption. If we may respectfully paraphrase the words of Lord Upjohn, in cases where the intention of the transferor or guarantor at the time of the transfer can be ascertained from the documents, then no question of any presumption of resulting trust would arises. The question is not one of the automatic consequences of a dispositive failure by A, but one of presumption: the property has been carried out by B, and from the absence of consideration and any presumption of advancement B is presumed not only to hold the entire interest on trust, but also hold the beneficial interest for A absolutely. Getting back to this case, after the sale of Juah Kim’s interest in the property to her mother Goh. She after that, had represented to him that he had an interest in the said property itself. The judge at first instance found that she had represented that her son would have half share in the proceeds or if she did not sell then on her death he could sell and take his half share of the proceeds. The court of appeal appeared to have accepted that she did say it. With respect if this is so surely it would be reasonable to infer that she must have intended that he have half share in the said property should she not sell in her lifetime. Here we can see that there is evidence of intention but not at the time of transfer. If it is shown that there was no actual intention to confer a beneficial interest on the legal title holder the presumption will not be effective and the normal presumption of resulting trust will apply.