A resulting trust can arise in a variety of different circumstances. A resulting trust may arise where a person (A) causes a property to be registered in another person’s (B) name, where A did not intend for B to become the sole beneficial owner of the property.
In this scenario, where A and B are strangers, a resulting trust may be presumed. However, where A and B are in a close relationship, for example A and B are married, the presumption of advancement may exist, meaning A will be presumed to have advanced the property to B, in which case a resulting trust may not be said to have automatically arisen and the presumption of advancement will need to be rebutted, if possible. For a resulting trust to exist, generally it would need to be shown on the balance of probabilities that it was the intention of A for B to hold the property in question on trust for A.
The existence of a resulting trust may be rebutted, where, on the balance of probabilities, it is evidenced that A intended to gift the property to B, by the presumption of advancement or by some other evidence of contrary intention. A presumption of the existence a resulting trust does not automatically override the actual intention of both parties.
The circumstances where an implied trust may exist are often similar to the circumstances where a resulting trust may arise. Broadly speaking, an implied trust may arise without any express statement from person (A), however the existence of an implied trust will generally be determined by the unique facts of the case.
If you have questions or would like further information, you can make contact with a Trust Lawyer or Asset Protection Solicitor in our Sydney CBD office. Alternatively, you can meet with a Trust Lawyer or Asset Protection Solicitor in one of our branch offices conveniently located across Sydney. For a full list of our office locations, with complete addresses, click on our "Locations" tab above or contact our main office line on (02) 9233 4048.
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