The Law of Trusts and Equitable Obligations Case Study

The Law of Trusts and Equitable Obligations - Case Study Example Whether or not the courts will find so in this instance is open to debate. As it is a presumption it is rebuttable by the donees showing that it was a gift, but the onus is on Wendy and Karen to show that it is a gift. (i)(a). Wendy will have to establish either that Martin intended to make a gift or that the presumption of advancement takes precedence over the presumption of a resulting trust. In order to establish that a gift was made the onus of proof is on Wendy. The court must go into the facts in order to determine whether there is sufficient evidence to rebut the presumption. Whilst Wendy is not married to Martin they do have a relationship which might indicate a moral obligation on Martin's part to provide for Wendy. This could give rise to the presumption of advancement, in which the assumption is that Martin intended Wendy to take both the legal and the beneficial interest of the shares. However in a series of cases quoted in Pearce and Stevens1 it is clear that there is no presumption of advancement between cohabiting couples. However in Pettitt v Pettitt [1970] AC 777 at paragraph 823 Lord Diplock reminds us that the presumption of resulting trust and advancement are: On the facts before us there is no reason to believe that Martin did not intend Wendy to own the shares outright. We are reminded that they shared a full life together and that Martin purchased shares for both Wendy and Karen at the same time. There is no indication that he did this for any other reason than for them to accrue benefits from the company - in the form of dividends - as the shares increased in value. It could be argued that based on conduct and the circumstances that Martin intended the shares as a gift. For example, Wendy may be able to show that Martin gave her the share certificates and that she was able to keep the dividends. However, based on the evidence before us the point is moot, and could go either way. (i)(b) There is a presumption of advancement between a father and his child, that is that a father would wish to provide financially for his child: Murless v Franklin [1818] 1 Swans 13. In such a case the child takes the property beneficially. Whilst Karen is not Martin's child they do have a relationship which might indicate a moral obligation on Martin's part to provide for Karen. In Bennet v Bennet [1879] 10 Ch D 474 Jessel MR said: as regards a child, a person not the father of the child may put himself in the position of an in loco parentis to the child, and so incur the obligation to make provision for the child The burden of proof will be on Martin to show that no gift was intended. For example if Martin could show that he retained the share certificates and/or that Karen paid the dividends to him (see Re Gooch [1890] 62 LT 384) this might be sufficient evidence to rebut the presumption, particularly if at the same time Martin had clearly stated that a gift was not intended. (ii) Martin's rights - if any - will be determined under a resulting or common intention constructive trust, or else proprietary estoppel - which does not require proof of common intention. Since Martin has made a direct contribution to the purchase price out of the profits of the business and by paying the mortgage this raises a