Sunday, February 10, 2019
Joseph Campbell recently published an Article entitled, The Consequences of Rebutting a Presumption of Advancement, Wills, Trusts, & Estates Law eJournal (2018). Provided below is an abstract of the Article.
Nelson v Nelson contains a dictum, adopting a statement of Scott, that when a presumption of advancement is rebutted the outcome is a resulting trust. Scott puts that statement on two bases. The first is that as a matter of 17th century legal history, rebuttal of a presumption of advancement led to a resulting trust. The second is that some North American cases support it. This article contends that Scott’s statement is true sometimes but not always. His proposition of legal history is not supported by the cases on which he bases it, and the North American cases on which he relies are not persuasive precedents for Australian law. It contends that sometimes when rebuttal of a presumption of advancement occurs the doctrine that a statute cannot be used as an instrument of fraud becomes operative, leading to a constructive trust. Sometimes rebuttal of the presumption leads to an express trust. There are other possibilities also. Sometimes equitable doctrines other than those concerning trusts decide the outcome.