What is the test for rebutting the presumption of a resulting trust?

Saskatchewan, Canada


The following excerpt is from Anderson v. Hervieux, 1984 CanLII 2636 (SK QB):

Hervieux submits that the presumption of the resulting trust was rebutted because of the principle of advancement. There is a presumption that the person who stands in the position of a husband or a parent and who conveys property to his spouse or child intended to make a gift. It is assumed that such person is transferring a portion of his assets to one who, by a marriage relationship or parent-child relationship is in some degree financially dependent on the parent and might expect to receive some of his assets on death. Such presumption appears to have arisen in the 18th century when there was no evidence of the husband’s intention to make gifts or the wives’ economic dependence on their husbands made it necessary as a matter of public policy to give them this advantage: Pettit v. Pettit, [1970] A.C. 777 (793); [1969] 2 All E.R. 385 (388-389).

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