Parent to child transfers: gift or resulting trust?



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Pecore dealt with bank accounts, but the decision was not apparently limited to transfers of money or personal property. Subsequent cases have applied Pecore to voluntary transfers of land.72

In England, although the presumption of advancement still applies to adult children, it has been said to be a ‘relatively weak presumption which can be rebutted on comparatively slight evidence’73. Further, it has been suggested that the presumption is ‘even weaker where, … the child was over 18 years of age and managed her own affairs at the time of the transaction.’74

There have also been recommendations by the UK Law Commission to abolish the presumption, for reasons which differ from Australia’s usage of the presumption. In England, the application of the presumption of advancement has a substantial effect where an illegal purpose is behind the transaction. A parent cannot prove an illegal purpose to rebut the presumption of advancement.75 The parent can, however, rely on the presumption of trust, even if an illegal purpose is involved. This inconsistency has led to proposals for its abolition.76 These reasons are less relevant here, due to the more flexible approach taken to illegality in Nelson v Nelson.77

It would, of course, be possible to take a further step, and remove the presumption of advancement totally.78





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