Resulting Trusts

- No intention needed, it just looks at circumstances of the situation.

- Where A purchases property in completely using his funds, but it is in the name of
B, then B will be the resulting trustee for A.
- Where A has used all his funds but he is jointly registering his name with B, then
B will still be the resulting trustee for A though B did not pay at all.
- If both of them jointly bought, used money to acquire a property, then they both
own the property in resulting trust for each other. How much depends of how
much they contributed for it.
1. A trust is where identity of beneficiary is uncertain.
2. A trust is where the ascertainable of share of property is uncertain. ( subject matter
being problematic)
3. The trust created contravened public policy.
4. The trust infringes the role of inalienability of the land
Thus, another trust results. This is due to the previous failure in private trusts.

 Wan Naimah v Wan Mohammad Nawawi [1974] As long as the general principle of the
resulting trust is fulfilled, the Court has held that there is no need to have it written down.
Comes from the state of affairs, not from the actual intention of the parties, but is
presumed. Presumed intention instead of actual intention & exists in the absence of the
settler's clear intention.

1. Automatic resulting trust

 An automatic resulting trust will occur where the settlor transfers property through
express trust to the intended trustee, but for some reason the trust has failed. The
trustee retains the legal title of the trusted land. The settler holds the beneficial /
equitable land.
Morice v Bishop of Durham [1805]  determined by naming beneficiaries which
cannot be defined

2. Presumed resulting trust

 The presumed resulting trusts are either the result of a voluntary transfer of the legal
property or of a donation to the purchase price. It is presumed in these cases that the
person did not wish to make a donation of the property or cash unless there is a strong
intention that they wished to do so. A resulting trust occurs in such circumstances and
the transferor or the person making the donation retains or takes a share in the
beneficial interest.
Westdeutsche Landesbank Girocentrale v Islington LBC [1996] "... the presumption
of the resulting belief is disproved by evidence of some intention inconsistent with that
trust, not simply by proof of an intention to make a gift."
Liew Choy Hung v Fork Kian Seng [2000], The principle where two or more purchase
a property in joint names but with no declaration of trust, then they would be holding the
property on resulting trust for each other proportionate to their contribution was referred
to as an old principle by the High Court
CLASSIFICATION OF RESULTING TRUSTS.
Westdeutsche Landersbank Girozentrate v Islington LBC
Based on Situation 1, A gives money/property to B, then there is a presumption that B is holding
in trust for A. A purchases but puts it in B's name, therefore there is a resulting trust where B is
holding in trust for A. A and B purchases the property where each contributed 50% but the
property is still under B's name. Hence, there is a resulting trust where B is holding it 50% for
himself and the remaining 50% for A. Just because it is under B's name, that does not make it
entirely his where equity is concerned. Based on Situation 2, where A transfers’ property to B on
an express trust but the trust is declared to be failed because of some kind of issue, for
instance, they cannot exhaust the whole of beneficial interest. An example would be where A
has a property and appoints B to be the trustee in order to distribute it to charity for the blind
people in Melaka. After distributing the money, there is still leftover which makes the trust is
NOT exhausted. In this situation, B must give the money back to A (settlor) because he is now
the resulting trustee and B cannot use remaining money for his own benefits.
There are 2 ways to classidy resulting trust .
i. When A makes a voluntary payments to B or if A pays wholly/partly for purchase of
the property to B or it is joint (A & B)
ii. When A transfers property to B on express trust, but fail (not exhausting whole
beneficial interest)
Loo Hon Kong v Loo Kim Lin
Liew Choi Hong v Fok Kian Seng, As husband and wife, the plaintiff and the defendant lived
together, but they were not legally married to each other. Both purchased a house where the
plaintiff paid RM 170,000 + and the defendant paid RM 10,000 + in both of their joint names.
After several years, the plaintiff argued that she was entitled to the house completely because
her arguments were that she paid heavily for the house and that the defendant made a
statement to the plaintiff in 1986, when the house was on auction, saying that "I have only a
very small share of the property, do not let the bank auction the land, take over my share and
redeem the property." The issues were whether the plaintiff and the defendant kept the house
on the resulting trust for each other in this situation and whether the money paid to the
defendant by the plaintiff was an obligation to pay her back as a result of the trust? They kept
the house for each other on a resulting trust proportionate to how much they contributed to the
purchase price. The Court ruled that, since they were unable to prove if such a conversation
took place, they could not find proof of the conversation. The plaintiff does not, however, own
the house entirely. The Court found out that there are two general laws, the first of which is that
they keep half and half of it, with the exception of one which pays more than the other. Second,
at the time of the purchase of property and not later, the amendment to the 1st general rule has
to be addressed.
Principle: Where 2 or more persons purchased a property in joint names but with no declaration
of trust,then they would be holding the property on resulting trust for each other according to
their contributions.
Resulting trust and Constructive trust
It is difficult to determine in practise whether the facts of the case will be suitable for the
application of constructive or resulting trust, because they are based on different principles.
Takako Sakao v Ng Pek Yuen
The court emphasises that the presumptions in force do not compensate for the need to
investigate the facts of the case in order to decide what the parties really intended.
Wan Naima v Wan Mohamad Nawawi
As long as the general principle is fulfilled, then do not have to have it in writing.
Resulting Trust on Account of Contributions to Property
Dyer v Dyer
The clear result of all cases without a single exception, is that the trust of a legal estate, whether
freehold, copyhold, leasehold, whether taken in the names of purchasers and others jointly, or in
the names of others without that of the purchaser, whether in one name or several, whether
jointly or successive, it always results to the beneficial interest to the man who advances the
purchase money. Who pays for it, he is the beneficial owner.
Goh Koon Suan v Heng Gek Kiau
The settled law is that if A buys property in the name of B, who is no relative, B is held to be a
trustee of that property for A. But if B is the child or a wife of A no such trust is presumed and
the law presumes that the legal and beneficial ownership is in the child or the wife so that the
onus is on those who seek to rebut the presumption and establish an absolute trust for the
father. If the father wants to say the child/ wife is just holding it on trust for him, then the father
has to proof his case. Otherwise, the presumption is child/wife, and there is no resulting trust.
(i) Where X purchases property using his own funds but putting it in the name of Y
(Purchase in the name of another)
If A buys a property in the name of B, B is assumed to retain the property in the name of A
in the resulting trust. The equitable title results in A supplying the money for the transaction
unless the presumption can be rebutted by B.

Dyer v Dyer: The trust of a legal estate results to the man who advances the purchase-
money.
Bull v Bull: A mother and son purchased a house jointly, which was transmitted alone in
the son's name. They decided after the son's marriage that the mother would occupy two
rooms and the son and his wife would occupy the rest of the house. The court held that
both mother and son are mutually equal tenants. Each is entitled to an undivided share
in the house as equity.
Savage v Dunningham: Defendant and two Plaintiffs were joint tenants in a flat, of
which Defendant was the true tenant. They shared the rent equally. Without telling
Plaintiffs, Defendant accepted an offer from the landlords to acquire the property.
Plaintiffs sought a declaration that they were the beneficial owner. It was held that the
 fact that the trio shared the rent did not create a resulting trust, since rent was payment
for the use of the property, as opposed to the purchase of the capital asset. The
relationship between the parties had not been that of trustee and cestui que trust
(beneficiary).

ii) Where there is a gratituitious transfer of property by X to a third party (Y). Then Y
would be holding the property on trust for X. (Voluntary transfer in the name of
another)
same fundamental applies where there is a gratuitous transfer of property by A to a third-party
C; C would be holding the property on trust for A

Hodgson v Marks (movable property)

One old lady, Mrs Hodgson. One day she took in Evans as a lodger to stay in the house. She
developed an affection for him and trusted him to manage her affairs, much to the annoyance of
her nephew. Her nephew tried to convince her to turn Evans out, she in turn conveyed the
house to Evans, but she continued to be the beneficial owner under an oral agreement with
Evans. Evans later sold the property to a bona fide purchaser, Marks. The English Court of
Appeal held that Mrs Hodgson remained the beneficial owner in equity, and a resulting trust
existed to protect the interest.
Re Vinogradoff ( non-movable property)
Mrs Vino, transferred 800 pounds of stocks into joint names of herself and her granddaughter
who was 4 years old she continued to receive dividends until she died Mrs Vino estate is
claiming from the granddaughter for the amounts that is due for her half. Court held that it was a
resulting trust, and the granddaughter is holding half for her self, and half for the grandmother.
So the dead’s grandmother estate, can claim from the granddaughter because she is a resulting
trustees.
iii) Where X and Y participate in a purchase, the funds or part of them being
provided by X but the title in the name of Y.
Muschinski v Dodds
The court said that ‘where on a purchase, a property is registered to two persons, whether they
are joint tenants or tenants common to each other, and one of these persons has provided the
whole of the purchase money, the property is presumed to be held in trust for that person. If a
person contributes only a portion of the purchase price, his beneficial interest normally would be
in proportion to his contribution.
Bull v Bull
A mother and a son jointly purchased a house together, which was conveyed in the son’s name
alone. The court held that ‘ the son is the legal owner of the house, but the mother and the son
are equitable tenants in common together. Each is entitled in equity to an undivided share in the
house, the whole house belong to both of them together, cannot be divided. The share of each
being in proportion to his or her contribution. Netiher can turn the other out, but if one of them
takes more share than he should, the injured party can take an action. If one of them kick the
other out, then he would be guilty of trespass.
REBUTTING RESULTING TRUSTS
The presumption of a resulting trust may be rebutted :
1. By evidence inconsistent with its application (the evidence that shows that it is not
intended to be a resulting trust)
2. Presumption of advancement

1. INCONSISTENT EVIDENCE
Standing v Bowring
Trust are neither created nor implied by law to defeat the intentions of the donors or settlors,
rather equity and trust are created to hold up the intention of the donors and settlors, whether
express of implied. Using this principle, if we can product evidence that resulting trust was not
the intention of the parties, the rules of equity cannot ignore this. Thus, has to allow a rebuttal of
presumption. The question is whether the evidence would indicate that the real purchaser in fact
wanted the other to take beneficially?
Loo Hon Kong v Loo Kim Lin
If the defendant claims that he is the beneficial owner of the second half of the land, he must
provide evidence that he has made the payments for that land, and he must also demonstrate
that there was no resulting trust. Since the defendant failed to provide proof, then the Court held
that there was a resulting trust exist and that the defendant was a resulting trustee and the
plaintiff was the beneficial owner of both the properties.
Tan Sri William Cheng Heng Jem & Anor (suing as the President and Deputy President of
the Associated Chinese Chambers of Commerce and Industry of Malaysia, and for and
on its behalf) v Tan Sri Ngan Ching Wen & Ors
The plaintiff ('ACCCIM') at its meeting on 18 May 1979 received a proposal for the
establishment by ACCCIM of a RM100m Chinese Economic Development Fund ('the Fund').
Pursuant to this a company ('D7') was registered to raise funds for the fund and to involve in
various major business activities. ACCCIM played the role of promoter in the launching of the
fund. Tan Sri Wee Boon Ping ('Wee'), the then President of ACCCIM requested the
Sabah State Government to allocate to ACCCIM 20,000 acres of land in Sabah at a premium
of RM50 per acre for the purposes of developing it into an oil palm plantation. The Sabah
Chief Minister responded favourably to Wee's request and suggested to Wee that a Sabah
State agency like Koperasi Pembangunan Desa ('KPD') should also be involved in the
business venture with ACCCIM. Hence, D8 was incorporated as a private limited
company to implement the project between ACCCIM and KPD. D8 was initially a wholly
owned subsidiary of D7. The Sabah State Government then agreed to alienate certain lands to
KPD for the purpose of implementing the joint venture project between KPD and ACCCIM. As
part of the joint venture basis the lands were alienated to and registered in the name of D8
instead of KPD. The paid up capital of D8 was increased and D8 became 49% owned by KPD
and 51% owned by D7. Subsequently, D7 invited the public to subscribe its shares for the
purposes of developing the lands. ACCCIM applied and was allotted 250,000 ordinary shares in
D7. Later D7 acquired all the shares held by KPD in D8 and D8 became a wholly-owned
subsidiary of D7. ACCCIM then disposed of all its shares in D7. D8 was later converted into a
public limited company. In this action ACCCIM sought, inter alia, declarations that the lands
were held in trust by D8 on behalf of ACCCIM.
The court dismisses the claim of the association. It looks at 2 points of law which is land law and
also resulting trust. In land law, the court finds that the he registration of the title in the lands in
D8's name by the Sabah State Authority pursuant to the Sabah Land Ordinance ('SLO')
vested conclusively in D8 the legal and beneficial ownership in the lands which was
immediately indefeasible against the whole world. Such a title upon registration cannot be
questioned by any one and the court cannot go behind such a registered title to enquire or
investigate as to the pre-registration arrangement between D8 and ACCCIM or as to the
actual intention of the Sabah State Authority when alienating the lands to D8. Under the
Torrens system of land registration, a trust is an unregistered unregistrable interest that exists
only outside the Torrens system. Thus, an 'interest' created under a trust is incapable of
registration. This is based on the Torrens principle that a trust document cannot be
registered and can only exist off the Torrens register. Nevertheless such an unregistered
unregistrable interest can be protected against a subsequent registered statutory title or
encumbrance that is being acquired by a bona fide purchaser for good value, by the entry
of a protective device (caveat). The only way ACCCIM could get its trust in the lands
recognised and protected under the SLO was by the entry of a caveat under those land.
Muschinski v Dodds
The parties lived together, not married. In 1975, they decided to buy a property in Picton. They
wanted to erect pre-fabricated house and also restore an existing cottage on that land. They
wanted to use the cottage as a art and craft center. The appellant would provide the purchase
price of the land for $20K from the sale of her own house. The respondent would pay for the
construction and improvement cost for $9K from his divorce together with some loans. The
property was then conveyed to them both as tenants in common. Subsequently, although some
improvements were made by the respondent, the erection of the house could not proceed. They
separated 5 years after. Apart from their labor, the appellant contributed $25K. the respondent
did not contribute the $9K that he said he would, he only contributed a little from it.
At the end of the day, she contributed more than what she should, and he contributed far lesser.
The appellant brought proceedings for declaration that the respondent held his joint interest in
the land in resulting trust for her. Her claim was dismissed in the first instance. The presumption
of resulting trust in favour of the appellant, was rebutted with evidence saying that there is a
resulting trust. however, they agreed to be tenants in common. So the property are theirs
altogether. The appellant cannot claim for resulting trust.
The evidence admissible to establish the intention of the real purchaser will comprise ‘the acts
and declarations of the parties before or at the time of purchase or so immediately thereafter as
to constitute a part of the transaction. In addition, the purchaser may testify as to the intention
which he or she had at the relevant time. Subsequent declaration will be admissible as evidence
only against the party who made them and not in his or her favour.
The presumption of the law of equity is that, where two or more persons advance the purchase
price of property in different shares, the person or persons to whom the legal title is transferred
holds or hold the property upon resulting trust in favour of those who provided the purchase
price in the shares in which they provided it. That presumption performs much the same
function as a civil onus of proof.
General statements to the effect that it is not lightly to be rebutted should not now be accepted
as good law. hat is not to deny that the facts which call the presumption into operation may, in
the circumstances of a particular case, also lead to such a strong inference of an intended trust
that convincing evidence would be necessary to rebut it.
Even in such a case however, the presumption operates by reference to the presumed intention
of the party whose contribution exceeds his or her proportionate share, it cannot prevail over the
actual intention of that party as established by the overall evidence, including the evidence of
the parties’ respective contributions.
Palaniappa Chettiar v Arunasalam Chettiar
Where the property was purchased with the funds provided by the father but was transferred to
his son as the absolute owner. The sole purpose of doing so was to defeat Rubber Board
regulations which he deemed unfavourable to him. The transfer registered in a Memorandum of
Transfer and listed a consideration of $7000 for the transfer. However the whole matter came to
a head when the son decided to hang on to the land for his own reasons and refused to give it
back to the father. The Privy Council held that upon the transfer of the property by the father to
the son, a presumption of advancement arose in favour of the son. It was revealed that there
was no actual consideration during the course of the transaction between father and son. This
was simply a scheme by the father to bypass a government regulation, an unconscionable act
and motive on his part. The maxim he who seeks equity must come with clean hands was
applied and the court refused to intervene as the plaintiff had not come with clean hands. In
seeking to recover the property from the son, the father had to rebut that presumption and in so
doing, he had to show that his true intent was not to benefit his son but to defraud the relevant
authority. Since he had to rely on an illegality, the court would not assist him in enforcing the
resulting trust.
Tneu Beh v Tanjong Kelapa Sawit Sdn Bhd

2. PRESUMPTION OF ADVANCEMENT
In comparison, the presumption works when one person transfers property to another, and there
is a legal presumption that the transfer was intended as an absolute gift. There are certain
unique relationships between the donor and the donee, which displace the presumption of a
resulting trust and otherwise give rise to a presumption. This special relationship gives rise to
the donor's moral duty to provide the donee with assistance.
Father and child (arise)
There is a ‘nature of obligation to provide’ which a father who wishes to take care of his child
would make for the purpose of his maintenance transfers of assets to the child.

Re Roberts (1946)
A father took out a life insurance policy for his son and paid all the premiums. The father was
named as trustee of the policy. After his death, it was argued that the premiums paid could be
recovered by the estate. Held: A father making payment on behalf of his child prima facie is to
be taken to be making and intending an advance in favour of the child.

Mother and Child

Presumption of advancement between mother and child is absent.
Perceived absence of an obligation on the part of the mother to provide for the child, only father
has moral obligation.
Snell’s Equity:
“even aside from the formal presumption, the inference would readily be drawn that a gift/
contribution to the child’s maintenance was intended, even when the child was an adult. It would
be particularly strong where a widowed mother was providing for her child”

Sekhon v Alissa [1989]

Mother’s contribution of $22,500 to her daughter to enable her to purchase a house, and the
court held that there was then a resulting trust in favor of the mother.

Bennett v Bennett [1879]

in the case of a mother…it is easier to prove a gift than in the case of a stranger: in the case of
a mother very little evidence beyond the relationship is wanted, there being very little additional
motive required to induce a mother to make a gift to her child

Nelson v Nelson [1995]

the mother and father now have a legal obligation to support their child. Independently of any
legal obligation of a mother, it would not accord with the reality of society today for the law to
presume only a father has a moral obligation to support or is in a position to advance the
interests of a child of the marriage

Husband and Wife

Re Eykyn’s Trusts

If a husband only transfers money or other property to his wife's name, then the presumption is
that it is intended completely at once as a gift or advancement to the wife.
Pettit v Pettit
The significance of the presumption between husband and wife was reduced. The economic
dependency of wives on their husbands was the only logical ground for the presumption and,
considering the changes in social conditions, the strength of the presumption had to be
significantly reduced.
Goh Koon Suan v Heng Gek Kiau
Plaintiff purchased a property and registered it under the name of his mistress Defendant.
Plaintiff claimed that he told Defendant to hold it on trust for him. Defendant however claimed
that it was an outright gift for her and refused to transfer the property to Plaintiff. Plaintiff sought
a declaration that Defendant held the property in trust for him absolutely. The court held that
since Defendant was not a wife of Plaintiff, the presumption that arises and should arise would
be not one of advancement in favour of Defendant but rather one of trust in favour of Plaintiff.
The onus therefore shifted to Defendant to rebut the presumption of trust.

Wife and Husband

No presumption of advancement arises from wife to husband
A transfer from the wife to husband does not negative the inference of a resulting trust in favour
of the wife.
Rebutting the presumption of advancement:

 Shephard v Cartwright [1955]

The presumption of advancement may be denied by proof of the actual intention
of the party to provide the purchase money, the effect of which is the resulting
trust.

 Ponniah v Sivalingam & Ors [1991]

In relation to shares assigned to the wife and children of the appellant, the
presumption of advancement can be rebutted.

 Sabrina Loo Cheng Suan v Eugene Khoo Oon Jin [1995]

In both their names, Eugene was buying land, his intention was to buy the
property as their matrimonial home.
If applicable, the presumption of advancement will be rebutted by proof that the
parties had purchased a house with equal undivided shares as a marital home.
Evidence: The actual intent of the party to provide the money for the purchase.

 Warren v Gurney [1944]

In the name of one of the daughters, the father bought a home, but later orally
declared that the property was to be enjoyed in equal shares by all his three
daughters.
The declaration was sufficient to rebut the presumption of advancement, and the
fact that the father continued to hold the title deeds.
Proof: No gift was intended
Proof of Illegality to Rebut Presumptions
If A puts property in the name of B in order to achieve an unlawful purpose, can he rebut the
presumption of advancement by proving his real intention?
If the relevant presumption is a resulting trust, can A rely on it although the purpose was
unlawful
Tinsley v. Milligan (1994)
With their mutual assets, both parties purchased a home. They both wanted to share beneficial
ownership, but the house was under Miss Tinsley 's name so that Miss Milligan could
fraudulently claim social security benefits because she did not own the house. Subsequently,
both of them had an arrangement and Miss Tinsley moved out of the house based on her legal
right to assert ownership of the land. Miss Milligan, however, made a counterclaim and
concluded that there was actually a declaration that Miss Tinsley kept the house in trust for both
of them. Miss Tinsley then argued that Miss Milligan should not be permitted to create any
beneficial interest in the house because of the fraudulent scheme. Both of them, however, had
benefited from the fraudulent scheme.
Held: HOL, it was only appropriate for Miss Milligan to prove that the funds for the purchase of
the property came jointly from both of them, as this would be sufficient to give rise to the
resulting trust in her favour. She did not need to rely on the true intent of the trust to defraud the
Social Security Department. Lord Browne-Wilkinson maintained that it was only because Miss
Tinsley tried to lift it that the illegality arose. Miss Milligan, having proven these facts, had raised
a presumption of resulting faith and there was no evidence to contradict the presumption. The
importance of Tinsley's case was that there is no need to rely on the suspected illegality if an
applicant is able to rely on the presumption of subsequent confidence. The HOL also held that
proof of an unlawful intent could not contradict the presumption of advancement.
Nelson v. Nelson (1995)
For the purchase of a house, a mother (the First Appellant) provided funds and the title was set
under the name of her son (the Second Appellant) and her daughter (the First Respondent). It is
done in this way so that in purchasing another house the mother may enjoy a subsidised
finance and she claimed that for this reason she has no interest in the house under the name of
her children. She demanded the proceeds of the house when the house was then sold to her
children and found that the house was kept in trust for her. Her son, the Second Appellant,
supported this. The daughter then cross-claimed and said that, on the basis of her mother's
advancement, she had a beneficial interest in the land.
Held: The mother-child relationship gives rise to the expectation of change. The inference,
however, is rebutted by proof showing the intention of Mrs Nelson to defraud the
Commonwealth by concealing her interest in the first house in order to receive the subsidised
loan. This amounted to proof of her illegality, but her declaration that a subsequent trust arose is
not fatal to this illegality. It was therefore held that Mrs. Nelson was good and that her children
held their shares in their mother's resulting trust and that her daughter had to pass her share to
Mrs. Nelson.