Article: Intra-family Wealth Transfers: The Presumption or the ‘Presumption’ of Advancement?

John Mee (University College Cork) recently published, Intra-family Wealth Transfers: The Presumption or the ‘Presumption’ of Advancement?, 2024. Provided below is an Abstract:

This article examines persistent suggestions in the Australian courts, most recently in Bosanac v Commissioner of Taxation [2022] HCA 34, that the presumption of advancement ‘is not really a presumption at all’ and is merely ‘a circumstance of fact in which the presumption of resulting trust does not arise’. The article analyses in turn three possible bases for denying that the presumption of advancement is a true presumption. The first approach, advocated by Professor Jamie Glister, involves the proposition that the existence of the relationship of advancement constitutes consideration for the transaction in question, thus preventing it as qualifying as a voluntary transaction to which the doctrine of resulting trusts can apply. The second approach, advanced by Professor William Swadling, suggests that the primary facts that must be proven by S in order to trigger the presumption of resulting trust include the fact that no relationship of advancement exists between S and D, thus effectively collapsing the presumption of advancement into the presumption of resulting trust. The third and final approach involves the proposition that proof by D of the existence of a relationship of advancement leads to the disapplication of the presumption of resulting trust which would otherwise have operated but that this occurs without the proof of any fact by presumption. The conclusion of the article is that, although the presumption of advancement is distinctive in that it is a counter-presumption, it nevertheless possesses the essential characteristics of a presumption in the law of evidence. This conclusion is important for both practical and theoretical reasons.