The Problem with Intention: Is the Resulting Trust Approaching Extinction?

AuthorJames Richards
S.S.L.R. Is the Resulting Trust Approaching Extinction?
The Problem with Intention: Is the Resulting Trust
Approaching Extinction?
James Richards
Although the resulting trust is widely used in a large array of distinct
situations; the theoretical basis of the doctrine is often overlooked. This study
will evaluate the two prevailing views upon the foundation of the trust: Lord
Browne-Wilkinson in Westdeutsche and Megarry J in Vandervell, consider
the different factual scenarios in which the resulting trust is said to arise, and
consider whether the trust is still the most effective way to settle the evidential
gap in ownership. For instance, in the realm of cohabitation where the
common intention constructive trust is now preferred, as a more malleable
doctrine, to the new challenges of the law.
The current theoretical understanding of the Resulting
esulting trusts are used as a mechanism to return property to the
settlor in circumstances where the ownership of property is in doubt.
There are two recognised categories of resulting trust: presumed and
automatic, which arise in different situations. However, there has been
difficulty in explaining the basis of such an instrument. Lord Browne -
Wilkinson endeavoured to reconcile the entirety of the law of resulting trusts
under a foundation of intention
1. Nevertheless it should be realised that this is
not sufficient because the resulting trust is a complex ideal and thus, cannot
be comfortably confined to a simple model of intention.
In the realm of presumed resulting trusts, Lord Browne-Wilkinson suggests
that the presumption is based upon the intention of the settlor. In accordance
with this, Swadling discussed the presumption e.g. that a contribution to the
purchase price of a property is not a gift and concludes that the inherent
presumptions are ‘true’.2 Therefore they are inferred and ‘arise because of the
existence of the secondary fact is the most likely inference to draw from proof
by evidence of the basic fact’3. This presumption has been recognised regularly
1 Westdeutsche v Islington BC [1996] A.C. 669, 708.
2 Swadling, W., ‘Explaining Resulting Trusts’, 2008 Law Quarterly Review 72, 74.
3 n.2, 74

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