A resulting trust could be created where an informal agreement to transfer assets in exchange for care has failed, for example, where an older person contributes to the purchase of a property (in which they understood they were to reside with their adult child and their family) and legal title equivalent to their contribution was not given.
- What was the intention in transferring the assets?
- Was a resulting trust intended or is there evidence that a gift was intended (presumption of advancement)? (Herd 2002, p.76)
A major obstacle for your client is rebutting the presumption of advancement because equity presumes, subject to contrary intention, that the transfer by the older person was intended to be an advancement or gift. You will therefore need to show that such a gift was not intended, for example, with evidence that a life interest was reserved, or that the transfer was motivated for reasons inconsistent with an intention to give beneficial ownership.
Case study
A man helps his daughter buy a house and moves in with her, but she abuses him and excludes him from the house
Alan, a 75-year-old man, contributes $100,000 towards the purchase of a home for his only daughter. He moves in with his daughter, who later becomes verbally and physically abusive. She forces Alan to let her make direct debits from his bank account. She also withdraws money regularly. His pension is his only source of income. One afternoon she locks him out of the house.
In Alan’s mind, the transfer of money to his daughter for the house was not a gift but his contribution to a joint venture whereby he would be provided with a home and care in exchange for money.
Possible causes of action and remedies:
Resulting or constructive trust
Equitable charge or lien
Caveat
Orders sought for repayment or sale of property to compensate him