Paul Hewitt, Paola Fudakowska & Adam Cloherty report on charitable gifts & the demise of the presumption of advancement
The “presumption of advancement” (the presumption) is the evidential presumption according to which a man—but possibly not a woman—is presumed, when making a transfer of property to his fiancée, wife or child, to be making a gift of it.
The presumption is a construct of equity developed by nineteenth century judges—Lord Diplock memorably criticised it in Pettitt v Pettitt [1970] AC 777 as reflecting the social and moral values of “the propertied classes of the nineteenth century and the first quarter of the twentieth century”. It operates as an exception to the converse rule that if a person transfers assets to another and receives nothing in return, the recipient holds the assets on trust for the transferor.
The presumption is honoured more in the breach than the observance. Modern authorities show it to be a weak one easily rebutted by any evidence to the contrary (see, eg, the discussion in Lavelle v Lavelle per Lord Phillips MR at [13]–[19])
