Peter Devonshire, ‘Resulting Trusts Arising from Voluntary Payments: Developments in New Zealand’

When money is transferred to another party without consideration, there is a rebuttable presumption that the funds are held by the transferee on a resulting trust for the transferor. This is a default rule which gives effect to the presumed intention of the transferor when actual intention is not evident. This article argues that it is anomalous to assert a continuing beneficial interest in money that has been transferred to another and that the relationship of a resulting trust with other legal concepts is problematic. This is explored with respect to gifts simpliciter and transfers from parent to child. With regard to the latter, the presumption of resulting trust may be displaced by a presumption of advancement. However, the boundaries of advancement are controversial, particularly if the recipient is a young adult. There is a further tension between the operation of a resulting trust and the right of survivorship under a joint tenancy. It is argued that in these and other settings it is questionable whether the presumption of a resulting trust should be invoked as a prima facie response to a voluntary transfer.

Peter Devonshire, Resulting Trusts Arising from Voluntary Payments: Developments in New Zealand, New Zealand Law Review, Volume 2019, Number 3, July 2019, pp 119-142 (24).

First posted 2019-08-01 05:56:49

Leave a Reply