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What happens when the son or daughter transfer property to the mother and father?

Whether this issue raises the question of presumption of advancement? Discuss this
issues the light of the case of Tiah Juan Kim v. Goh Swee Fang & Ors Singapore [1993]
Mallals Digest para 1343

The doctrine of presumption of of advancement dates back to the 18 th century to a


time when husbands and fathers were deemed responsible to provide for and
support their wives and children. This application allowed married women to own
property enabling them to transfer it to their next of kin.

Normally when a person passes the legal title of a property to another without
intention to pass to the beneficial interest, then it is presumed that the other person
holds the title on resulting trust. In other words, when someone gives property to
another in this manner it is only a temporary measure. The exception to resulting
trust is the presumption of advancement, which applied when the relationship
between the holder of the title and the recipient is so close that it is presumed the
holder did intend to pass both title and beneficial interest.

Presumption of advancement also has been referred as presumption of a gift.


However where the evidence establishes that a gift was intended, there is no need to
apply either presumption. Likewise if there is additional evidence to support other
intentions then the presumption of advancement does not apply.

In this case the first issue whether it give rises to the question of presumption of
advancement is on the intention of the transferor. Where the intention was not
expressed or known. The law presumes that resulting trust in favour of the transferor
or grantor. If it has been ascertained that the transferor or grantor intended that the
grantee should not take beneficial interest, then presumed resulting trust would rise.

This matter was stated very succinctly by Lord Upjohn in Vanderwell v. Inland
Revenue Commissioners [1967] 2 AC 291 at 312;[1967] 1 All ER 1:.. where A
transfers property to B otherwise than for valuable consideration it is a question of
intention of A in making the transfer whether B was to take it beneficially or on trust
and, if the latter, on what trusts. If , as a matter of construction of the document
transferring the legal estate, it is possible to discerns As intentions, that is an end of
the matter and no extraneous evidence is admissible to correct and qualify his
intentions so ascertained.

But if, as in this case (a common form share transfer), the document is silent, then
there is a said of resulting trust in favour of A. but this only a presumption and is
easily rebutted, all the relevant facts and circumstances can be considered in order to
ascertain As intentions with a view to rebutting this presumption.

If we may respectfully paraphrase the words of Lord Upjohn, in cases where the
intention of the transferor or guarantor at the time of the transfer can be ascertained
from the documents, then no question of any presumption of resulting trust would
arises. The question is not one of the automatic consequences of a dispositive failure
by A, but one of presumption: the property has been carried out by B, and from the
absence of consideration and any presumption of advancement B is presumed not
only to hold the entire interest on trust, but also hold the beneficial interest for A
absolutely.

Getting back to this case, after the sale of Juah Kims interest in the property to her
mother Goh. She after that, had represented to him that he had an interest in the said
property itself. The judge at first instance found that she had represented that her son
would have half share in the proceeds or if she did not sell then on her death he could
sell and take his half share of the proceeds. The court of appeal appeared to have
accepted that she did say it. With respect if this is so surely it would be reasonable to
infer that she must have intended that he have half share in the said property should
she not sell in her lifetime. Here we can see that there is evidence of intention but not
at the time of transfer. If it is shown that there was no actual intention to confer a
beneficial interest on the legal title holder the presumption will not be effective and
the normal presumption of resulting trust will apply.