The presumption of advancement: A modified rationale for the 21st century

H Jane Langworthy

The presumption of advancement is an equitable doctrine which operates in conjunction with the presumption of resulting trust to allocate the beneficial interest in property. A presumed resulting trust arises where a person gratuitously transfers, or contributes to the acquisition of property and this is not reflected in the legal title. The current state of the law is that the presumption of advancement operates to prevent the resulting trust from arising when the parties are in a recognised ‘advancement’ relationship. This thesis argues that the presumption of advancement should operate to counter the presumption of resulting trust when the parties are in a close relationship. The scope of the relationships to which the presumption of advancement currently applies is determined by the rationales which underpin the presumption. This thesis examines the origin and development of the rationales. It posits that the rationales are ossified: they continue to reflect 19th century social policy which entrenches paternalistic and chauvinistic values. This thesis analyses how the rationales impact on the relationships caught within the ambit of the presumption of advancement. It argues that the presumption of advancement ought to be modified so that there is one single rationale of a presumed intention to gift. On that basis the presumption of advancement should apply in all circumstances where the parties are in an enduring and non-commercial relationship. This thesis submits that a rationale based on probable intent rather than archaic social policy will better accord with contemporary community expectations.

The presumption of advancement: A modified rationale for the 21st century

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