header-logo header-logo

15 October 2010 / Paola Fudakowska , Adam Cloherty , Paul Hewitt
Issue: 7437 / Categories: Features , Wills & Probate
printer mail-detail

A new era of equality?

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])

If you are not a subscriber, subscribe now to read this content
If you are already a subscriber sign in
...or Register for two weeks' free access to subscriber content

MOVERS & SHAKERS

Jurit LLP—Caroline Williams

Jurit LLP—Caroline Williams

Private wealth and tax team welcomes cross-border specialist as consultant

Freeths—Michelle Kirkland Elias

Freeths—Michelle Kirkland Elias

International hospitality and leisure specialist joins corporate team as partner

Flint Bishop—Deborah Niven

Flint Bishop—Deborah Niven

Firm appoints head of intellectual property to drive northern growth

NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
back-to-top-scroll