The presumption of advancement: alive and well

Antoni v Antoni ([2007] UKPC 10) was an appeal to the Privy Council from the Court of Appeal of the Commonwealth of the Bahamas. A father was the beneficial owner of the five issued shares in a property investment company. He transferred the ownership of one share each to his three children. After his remarriage, he revoked a will leaving his property to his children and made a new one leaving everything to his new wife. He died not long afterwards. The wife claimed that the children held the shares on resulting trust for the father. This failed in the Court of Appeal in the Bahamas and in the Privy Council. There was nothing to rebut the presumption of advancement (or, one might say, no evidence to show that anything other than a gift was intended). The new will came after the transfer of the shares and cast no light on the father’s intention at the time of the transfer.

On the presumption of advancement, Lord Scott of Foscote said:

‘[T]he first instance decision [in favour of the wife] overlooked the relevance and importance of the presumption of advancement. This presumption, a construct of equity, applies when a parent places assets in the name of a child and assumes that the parent intends to make a gift to the child. It is a rebuttable evidentiary presumption. In the absence of adequate rebuttal evidence the presumption bars the application of the converse presumption, namely, the presumption of a resulting trust. If a person places assets of his or hers in the name of a stranger, the presumption is that the stranger holds the assets on resulting trust for the transferor. This, too, is a rebuttable evidentiary presumption.’ ([20]).

Note that the presumption of advancement was held to apply as between parent (not only father) and child.


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