Presumed resulting trusts, intention and declaration

Abstract

Rejecting the competing positions of Swadling and Chambers, this article argues that the law of presumed resulting trusts reflects a very old rule that, upon a voluntary transfer, the fate of the beneficial interest in the property depends on the intention of the transferor. The case law shows that the presumption is of an intention to create a trust for the transferor or provider of the purchase money. It makes no difference if, reflecting the historically important concept of “retention”, this is phrased in negative terms as a presumption that the intention of the transferor was not to pass the beneficial interest to the transferee