Lau Siew Kim V Terence Yeo (2007) - SGCA - 54

108 SINGAPORE LAW REPORTS [2008] 2 SLR
Lau Siew Kim

v
Yeo Guan Chye Terence
[2007] SGCA 54
Court of Appeal — Civil Appeal No 13 of 2007

Andrew Phang Boon Leong JA, V K Rajah JA and Belinda Ang Saw Ean J
10 July; 30 November 2007
Family Law — Advancement — Presumption — Presumption of advancement

still relevant in Singapore — Strength of presumption varying with circumstances in
accordance with modern social conditions — Factors to be considered in determining
strength of presumption
Land — Interest in land — Spouses holding properties as joint tenants — Unequal
contributions to purchase prices of jointly-owned properties — Interplay between
presumptions of resulting trust and advancement — Presumption of advancement
applying to presuming intention of parties for rule of survivorship to operate
Trusts — Resulting trusts — Presumed resulting trusts — Time at which respective
contributions of parties should be determined for purposes of presuming a resulting
trust — Nature of contributions giving rise to presumption of resulting trust
Trusts — Resulting trusts — Spouses holding properties as joint tenants — Whether
presumption of resulting trust arising on facts — Whether presumption of advancement
applying to displacing initial presumption — Whether sufficient evidence adduced to
rebut presumption of advancement
Facts
The respondents, who were the only sons of the late Yeo Hock Seng (“Yeo”),
had sought, inter alia, a declaration by the trial judge that the appellant, their
step-mother, held the properties at 149 Hougang Street 11, #10-136, Minton Rise,
Singapore (“the Minton Rise property”) and 18 Jalan Tari Payong, Singapore (“the
Jalan Tari Payong property”) (collectively, “the Properties”) on trust for the estate
of Yeo (“the Estate”).
The Minton Rise property was the matrimonial home of Yeo and the appellant.
The Jalan Tari Payong property was purchased by Yeo and the appellant with an
intention to redevelop it into two semi-detached houses. Both properties were
held on the basis of a joint tenancy in the names of Yeo and the appellant. After
Yeo’s demise, the appellant became the sole registered owner of the Properties by
virtue of the rule of survivorship.
[2008] 2 SLR Lau Siew Kim v Yeo Guan Chye Terence 109
The trial judge found that an unrebutted presumption of resulting trust arose on
the facts with respect to the Properties and declared that the appellant held the
Properties on trust for both herself and the Estate, in proportions corresponding
to their respective financial contributions to the purchase of the Properties.
Dissatisfied, the appellant appealed against the whole of the trial judge’s decision.
Held, allowing the appeal and affirming the appellant’s absolute ownership of
the Properties:
(1) Although the presumption of resulting trust was derived from an
understanding of human nature based on experience, it had now been elevated to
a rule of law. The presumption of resulting trust was, nevertheless, a rebuttable
presumption of law, the strength of which would vary according to the facts of the
case and the contemporary community attitudes and norms. The instances for
the application of the presumption could not remain stagnant; they had to change
with time as behaviour, lifestyle and attitudes evolved: at [37], [45] and [46].
(2) The presumption of advancement would operate only where there was no
direct evidence that might reveal the actual intention of the parties; only then
would there be any necessity to infer or presume intention. The presumption
of advancement was still very relevant in the established (both traditional and
extended) categories of relationships; it was the strength of the presumption that
should vary with the circumstances in accordance with modern social conditions:
at [59], [67] and [77].
(3) The court should take into account all the circumstances of the case in
assessing how strongly the presumption of advancement should be applied in the
particular case. Two key elements were crucial in determining the strength of the
presumption of advancement in any given case: first, the nature of the relationship
between the parties; and second, the state of the relationship: at [77] and [78].
(4) The presumption of advancement was not affected by considerations
relating to the division of matrimonial property such as that embodied in s 112
of the Women’s Charter (Cap 353, 1997 Rev Ed). Even where a marriage was
“terminated” by the demise of one spouse, the “separation of property” principle
continued to apply and the parties’ respective property rights continued to be
governed by the usual rules of property law: at [81] and [82].
(5) In the application of the presumptions of resulting trust and advancement,
the court disagreed with the approach that suggested that one presumption
would prevail over the other right from the outset based on the facts of the case.
Instead, a two-stage test should be adopted: the court had to first determine if the
presumption of resulting trust arose on the facts; and it was only if a resulting trust
was presumed that the presumption of advancement would apply to displace the
initial presumption. The actual effect of the presumptions of resulting trust and
advancement related to the burden of proof in the particular case: at [56] and [57].
(6) Where married spouses who contributed jointly to the purchase of a property
held that property as legal joint tenants, there was a presumptive inference that
the parties intended to hold that property as joint tenants in equity as well. This
inference was to be accommodated within the framework of the presumption of

advancement. The scope of the presumption should be expanded to include the
inference of an intention for the absolute beneficial ownership of the property to
be conferred on the surviving joint tenant: at [101], [102], [105] and [107].
(7) For the purposes of presuming a resulting trust, the parties’ contributions
to be considered were confined to those made at the time of the acquisition of
the property. However, a distinction could be drawn between contributions made
to the repayment of a mortgage on the basis of an agreement made when the
mortgage was taken out, and subsequent payments of mortgage instalments. The
payment of mortgage instalments pursuant to the agreement between the parties
would be “direct” contributions to the purchase price and would give rise to a
resulting trust: at [113] and [116].
(8) Contributions to the cost of repairs or renovation of a property might,
however, be relevant when computing a party’s contribution to the purchase
price of property for the purposes of a presumption of resulting trust, for instance
where a property was redeveloped closely after purchase and where its value was
increased by the redevelopment: at [126].
(9) As the respective contributions of the parties were unequal, the presumption
of resulting trust arose with respect to the Properties. Since the relationship
between the parties was a spousal one, the presumption of advancement operated
in relation to the Properties. The parties had a close and caring relationship and
Yeo's intention for the appellant to benefit absolutely from all his assets after his
demise was reflected by his execution of a will that named the appellant the sole
beneficiary of all his properties upon his death, although that would had been
revoked by operation of law. In the circumstances, a strong presumption of
advancement arose: at [121], [127], [129], [134], [141] and [142].
(10) Although the presumption of advancement could be rebutted by establishing
that the relevant transfer or contribution was made for the purpose of
convenience, the objective evidence did not suggest that convenience was the only
reason for the parties’ acquisition of the Properties as joint tenants. The evidence
adduced by the respondents was insufficient to rebut the presumption of
advancement in the present case: at [144] and [146].
[Observations: Although there were strong criticisms of the presumptions of
resulting trust and advancement, the presumptions could not be discarded by
judicial decision and any major overhaul of the presumptions was a matter for the
Legislature: at [51].
The court was more inclined to the view that the presumption of
advancement emerged no less from affection than from dependency and applied to
all gratuitous transfers from parents to any of their children, regardless of the age
of the child or dependency of the child on the parent: at [68].
Given that legislative recognition and public consensus about the status of de
facto relationships had yet to emerge locally, any development of the presumption
of advancement to apply to such relationships was presently unwarranted: at [74].
If legislation were amended to mandatorily require parties to specify the

manner of holding of land in the instrument of transfer, this would ensure that
all co-owners would be aware of their manner of holding in registered land. If
co-owners could be regarded as having knowingly intended to acquire and hold
the estate or interest in the manner of holding specified, there would be no need,
generally, for any intervention on the part of the courts or equity to presume a
completely different beneficial manner of holding: at [94].]
Case(s) referred to
Allen v Snyder [1977] 2 NSWLR 685 (refd)
Bennet v Bennet (1879) 10 Ch D 474 (refd)
Bernard v Josephs [1982] Ch 391 (distd)
Bertei v Feher [2000] WASCA 165 (folld)
Bilas Kunwar v Desraj Ranjit Singh AIR 1915 PC 96 (refd)
Brown v Brown (1993) 31 NSWLR 582 (refd)
Burton v McGregor [1953] NZLR 487 (refd)
Calverley v Green (1984) 155 CLR 242 (folld)
Cameron, decd, In re [1999] Ch 386 (refd)
Campbell Discount Co Ltd v Bridge [1961] 1 QB 445 (refd)
Clelland v Clelland [1945] 3 DLR 664 (refd)
Commissioner of Stamp Duties v Byrnes [1911] AC 386 (refd)
Cowcher v Cowcher [1972] 1 WLR 425 (folld)
Curley v Parkes [2004] EWCA Civ 1515 (refd)
Damayanti Kantilal Doshi v Shobhana J Doshi [1998] 1 SLR 530 (folld)
Diplock, In re [1948] Ch 465 (refd)
Diwell v Farnes [1959] 1 WLR 624 (refd)
Dullow v Dullow (1985) 3 NSWLR 531 (refd)
Dyer v Dyer (1788) 2 Cox 92; 30 ER 42 (refd)
Earl of Oxford’s Case (1615) 1 Chan Rep 1; 21 ER 485 (refd)
Eykyn’s Trusts, In re (1877) 6 Ch D 115 (refd)
Foley, In re [1955] NZLR 702 (refd)
Fowkes v Pascoe (1875) 10 Ch App 343 (refd)
Gissing v Gissing [1971] AC 886 (refd)
Goodfriend v Goodfriend (1972) 22 DLR (3d) 699 (refd)
Lim Kim Chye, deceased, Re [1936] MLJ 60 (refd)
Low Gim Siah v Low Geok Khim [2007] 1 SLR 795 (folld)
Marshal v Crutwell (1875) LR 20 Eq 328 (refd)
Midland Bank plc v Cooke [1995] 4 All ER 562 (refd)
Moate v Moate [1948] 2 All ER 486 (refd)
Murless v Franklin (1818) 1 Swans 13; 36 ER 278 (refd)

Napier v Public Trustee (1980) 32 ALR 153 (refd)
Nelson v Nelson (1995) 184 CLR 538 (refd)
Neo Tai Kim v Foe Stie Wah [1985] 1 MLJ 397 (refd)
NK v NL [2007] 3 SLR 743 (refd)
Pecore v Pecore (2007) 279 DLR (4th) 513 (not folld)
Pettitt v Pettitt [1970] AC 777 (distd)
Rider v Kidder (1805) 10 Ves 360; 32 ER 884 (refd)
Rimmer v Rimmer [1953] 1 QB 63 (refd)
Roberts, deceased, In re [1946] Ch 1 (refd)
Sayre v Hughes (1868) LR 5 Eq 376 (refd)
Sekhon v Alissa [1989] 2 FLR 94 (refd)
Soar v Foster (1858) 4 K & J 152; 70 ER 64 (refd)
Springette v Defoe [1992] 2 FLR 388 (refd)
Standing v Bowring (1885) 31 Ch D 282 (refd)
Teo Siew Har v Lee Kuan Yew [1999] 4 SLR 560 (refd)
Trustees of the Property of Cummins v Cummins, The
(2006) 224 ALR 280 (folld)
Vajpeyi v Yusaf [2003] EWHC 2788 (Ch) (refd)
Vandervell v Inland Revenue Commissioners [1967] 2 AC 291 (refd)
Westdeutsche Landesbank Girozentrale v Islington London Borough Council
[1996] AC 669 (refd)
Wirth v Wirth (1956) 98 CLR 228 (refd)
Yeo Guan Chye Terence v Lau Siew Kim [2007] 2 SLR 1(overd)
Young v Sealey [1949] Ch 278 (refd)
Legislation referred to
Evidence Act (Cap 97, 1997 Rev Ed) s 116
Inheritance (Family Provision) Act (Cap 138, 1985 Rev Ed) s 3
Intestate Succession Act (Cap 146, 1985 Rev Ed) s 7
Land Titles Act (Cap 157, 1985 Rev Ed) (repealed) s 48(1)
Land Titles Act (Cap 157, 2004 Rev Ed) s 53(1)
Land Titles Act 1993 (Act 27 of 1993)
Wills Act (Cap 352, 1996 Rev Ed) s 13(1)
Women’s Charter (Cap 353, 1997 Rev Ed) ss 51, 52, 68, 112
Evidence Act 1872 (India) s 114
Law of Property Act 1925 (c 20) (UK) s 34(2)
Supreme Court of Judicature Act 1873 (c 66) (UK)
Supreme Court of Judicature Act 1875 (c 77) (UK)

Transfer of Land Act 1893 (WA) s 60
Wills Act 1837 (c 26) (UK) s 18
Chew Swee Leng (ComLaw LLC) and Sng Kheng Huat (Sng & Co) for the appellant;
Michael Khoo SC, Josephine Low and Andy Chioh (Michael Khoo & Partners) for
the respondents.
30 November 2007 Judgment reserved.

V K Rajah JA (delivering the judgment of the court):
1 In modern societies, more properties are now being held in joint names.
This has been engendered by a number of factors including rising property
prices, joint-income families, gender equality, greater longevity, tax planning
and the function of a home both as a residence and an asset. Given the
increasing number of disputes involving the joint ownership of property,
particularly between spouses, a clear articulation and understanding of the law
governing the proprietary rights of co-owners is now more relevant than ever
before. In this context, not all have properly grasped when and why equity has
deigned to intervene so as to temper the seemingly unrelenting inflexibility of
the common law and/or statutes.
2 The law of implied trusts was conceived to validate and facilitate the
recognition of equitable interests whenever fairness required that formal title
ownership be adjusted to reflect the real interests of the parties in a property.
One such example of how equity has intervened to resolve uncertainty when
it arises in connection with the beneficial ownership of property is through
the presumption of resulting trust. A resulting trust is presumed to exist when
the transferee has not given full consideration or is a fiduciary or is under
an obligation to return the property to the transferor. Such a presumption
is justified by the finding of a presumed intention of the transferor that
he desires to retain ownership despite having parted with the legal title. A
countervailing presumption is the presumption of advancement that applies
to certain close relationships where it might be logically surmised that the
transferor intended to make a gift to the transferee. Needless to say, both
presumptions can be refuted by evidence of the real objective of the transferor.
The presumptions are, in the final analysis, no more than evidential guidelines
distilled from contemporary norms.
3 The present appeal addresses the merits of inferring and imposing a
resulting trust on a joint tenancy of property based on the alleged presumed
intention of a deceased joint tenant. Given the existence of a spousal
relationship, the competing and diametrically opposite presumptions of
resulting trust and advancement take centre stage in this inquiry. Current
community attitudes and societal trends must be taken into account and are
indispensable to a close scrutiny and study of each of these presumptions;
equitable rules and doctrines should always be approached and applied in
nothing less than a practical and principled manner. Larger policy issues also
figure in the equation, extending not merely to real property in general, but to
other types of property, such as bank accounts, as well. It must be emphasised,
however, that not every instance of property jointly held by spouses would
necessarily justify a “post-mortem” by the estate of a deceased spouse in
order to divide the property with a view to claiming a beneficial interest
proportionate to that party’s contributions. To that extent, one must consider
and clarify the interplay between the presumption of resulting trust on the one
hand and the presumption of advancement on the other, to determine which
prevails in any given instance of a joint tenancy. To facilitate digestion of this
judgment, we now set out the schematic arrangement we have adopted to
address the issues raised:
(1) Facts
(a) Background
(b) The Minton Rise property
(c) The Jalan Tari Payong property
(2) The trial judge’s decision
(3) The parties’ contentions
(a) The appellant’s case
(b) The respondents’ case
(4) Equitable principles and doctrines
(a) Historical background of equity
(b) Modern development
(5) Presumption of resulting trust
(a) Historical origins
(b) Presumption of fact or law?
(c) Modern-day application
(i) Abolishing the presumption of resulting trust?
(ii) A more moderate approach
(6) Presumption of advancement

(a) Parent-child relationships
(b) Spousal relationships
(i) Relevance of the Women’s Charter
(7) Joint tenancies
(a) The case of joint tenancies between spouses: Interplay between
the presumptions of resulting trust and advancement
(8) The present appeal
(a) Whether the presumption of resulting trust arises on the facts
(i) Time at which respective contributions of the parties
should be determined
(ii) Nature of contributions which give rise to the
presumption of resulting trust
(iii) The Minton Rise property
(iv) The Jalan Tari Payong property
(b) Application of the presumption of advancement
(i) Relevance of the second will
(ii) Legal advice on joint tenancy
(iii) Financial independence of the appellant
(iv) State of the relationship between the parties
(c) Rebuttal of the presumption of advancement
(i) Analysis of the evidence adduced by the respondents
(9) Conclusion
Facts
4 The factual essence of the present appeal may be captured within
a narrow compass. The respondents had sought, inter alia, a declaration by
the trial judge that the appellant held the properties at 149 Hougang Street 11
#10-136, Minton Rise, Singapore (“the Minton Rise property”) and 18 Jalan
Tari Payong, Singapore (“the Jalan Tari Payong property”) on trust for the
estate of Yeo Hock Seng, deceased (“the Estate”). The trial judge found that an
unrebutted presumption of resulting trust arose on the facts with respect to
both properties and it was declared that the appellant held the two properties
on trust for both herself and the Estate, in proportions corresponding to their
respective financial contributions to the purchase of the properties. The
appellant now appeals against the whole of the trial judge’s decision.
Background
5 The respondents are the only sons of the late Yeo Hock Seng (“Yeo”).
Yeo had two acrimonious divorces, one with his first wife, the mother of the
respondents, and the other with his second wife. These occurred in 1988 and
1996 respectively. For more than a decade before his death, Yeo was estranged
from the respondents and both respondents admitted to not having any
contact with their father during that period. On 18 December 2000, Yeo
married the appellant, his third wife. This marriage endured until he passed
away on 23 November 2004 as a result of a heart attack.
6 Yeo made two wills in his lifetime. His first will was dated 28 January
1992, and in it, he left all his real and personal property to the first respondent.
Subsequently, on 20 May 1996, Yeo made another will (“second will”) which
revoked his first will; the appellant was the sole beneficiary named in the
second will. However, upon the application of the respondents in Suit No 32
of 2005, the High Court declared that the second will had been deemed to be
revoked by the subsequent marriage of Yeo to the appellant on 18 December
2000. Summary judgment on this issue was awarded to the respondents on
5 July 2005. The appellant appealed against that decision but her appeal was
dismissed with costs on 27 July 2005. As such, the rules governing intestacy
would dictate the devolution of the Estate. This leads to the nub of the
controversy. What property constitutes the Estate?
7 Yeo had interests in three properties at the time of his demise: 33 Fowlie
Road, Singapore and 35 Fowlie Road, Singapore (collectively, “the Fowlie
Road property”), the Minton Rise property and the Jalan Tari Payong
property. The Fowlie Road property was initially 33 Fowlie Road (“the original
33 Fowlie Road”). It was demolished in 2002 and a pair of semi-detached
houses was built in its place, ie, 33 Fowlie Road and 35 Fowlie Road. 33 Fowlie
Road was sold in February 2004 for $1.828m. 35 Fowlie Road remains unsold.
The Fowlie Road property was registered in Yeo’s sole name and the property
is not the subject of dispute in the present appeal. The subject matter of this
appeal comprises only the Minton Rise property and the Jalan Tari Payong
property (collectively, “the Properties”), both of which were held on the basis
of a joint tenancy in the names of Yeo and the appellant. After Yeo’s demise,
however, the appellant became the sole registered owner of the Properties by
virtue of the rule of survivorship.
The Minton Rise property

8 In April 2000, Yeo and the appellant purchased the Minton Rise
property, a Housing and Urban Development Corporation maisonette under
the fiancé/fiancée scheme as joint tenants. The property was the matrimonial
home of Yeo and the appellant, and, to date, the appellant is still living in it.
9 The purchase price of the Minton Rise property was $495,000, and was
partially financed by a housing loan of $396,000 jointly obtained by both Yeo
and the appellant from Standard Chartered Bank on 6 June 2006. The balance
purchase price of $99,000 was paid by Yeo from his overdraft account with
Oversea-Chinese Banking Corporation Limited. Yeo’s overdraft account was
discharged by a term loan of $1,200,000 which Yeo and the appellant obtained
on 6 June 2006, in their joint names, from Standard Chartered Bank. This, in
turn, was secured by a mortgage on the original 33 Fowlie Road.
The Jalan Tari Payong property

10 On 10 March 2004, Yeo and the appellant purchased 18 Jalan Tari
Payong at an auction, as joint tenants, for $1,100,000. To finance the purchase,
a housing loan of $770,000 secured by the property was obtained jointly by
Yeo and the appellant from United Overseas Bank Limited (“UOB”) on
19 March 2004. A further short-term loan of $80,000 was obtained by Yeo and
the appellant from UOB, by way of a joint letter of undertaking, to repay that
sum from the sale proceeds of 33 Fowlie Road. The balance of the purchase
price, which amounted to $250,000, was financed by the overdraft facilities
obtained by Yeo and the appellant from UOB. This was also secured by the
original 33 Fowlie Road; after the redevelopment of the Fowlie Road property
and the sale of 33 Fowlie Road, the overdraft facilities were subsequently
revised and secured solely by 35 Fowlie Road.
11 Yeo and the appellant bought the Jalan Tari Payong property with an
intention to redevelop it into two semi-detached houses (18 and 18A Jalan
Tari Payong). Construction commenced in June 2004 and the works were only
completed in 2005 after Yeo’s death. The redevelopment of the Jalan Tari
Payong property was financed by a construction loan of $822,500 from UOB,
obtained jointly by both Yeo and the appellant on 7 July 2004. Following Yeo’s
demise, on 5 May 2005, the appellant obtained a revised construction loan
from UOB, in her sole name, to complete the redevelopment of the Jalan Tari
Payong property.
12 18A Jalan Tari Payong was sold on 22 June 2006 for $1.5m and the
proceeds of sale were used to discharge the construction loan and the
expenses incurred in the redevelopment of the property. The Jalan Tari
Payong property in issue in the present appeal is, therefore, only the property
at 18 Jalan Tari Payong.
The trial judge’s decision

13 The trial judge held in Yeo Guan Chye Terence v Lau Siew Kim [2007]
2 SLR 1 (“the High Court decision”) that the existence of a resulting trust
overrode the right of survivorship in the joint tenancies of both the Minton
Rise property and the Jalan Tari Payong property. She acknowledged that it
was axiomatic that the right of survivorship dictated that both the properties
in joint tenancies belonged to the appellant. However, she opined that this
would result in the Estate being left with nothing, which appeared to her to
be both unintended and unjust. The learned trial judge was therefore of the
view that equity ought to intervene, in this case, to ensure that although Yeo
and the appellant were joint tenants at law, they were actually deemed to be
tenants in common in equity, in accordance with the proportion of their
respective financial contributions.
14 With respect to the Minton Rise property, the trial judge had “grave
doubts” on whether the appellant had indeed contributed to its acquisition
(see the High Court decision at [49]). Nevertheless, as: (a) the appellant was
the joint borrower of the housing loan for the Minton Rise property; (b) the
Minton Rise property was the matrimonial home of Yeo and the appellant;
and (c) the appellant had continued to reside there, the trial judge concluded
that the appellant could not be deprived of all interest in that property. Hence,
it was held that there was a resulting trust over the Minton Rise property in
the proportions of the financial contributions of Yeo and the appellant. After
scrutinising the repayment scheme of the housing loan and acknowledging
that the appellant had paid the monthly mortgage instalments for the bulk
of the housing loan upon Yeo’s demise, the trial judge was of the view
that “rough and ready justice” (see the High Court decision at [58]) dictated
that the proportions of the property to be held on trust should be 50% to the
Estate and 50% to the appellant.
15 As for the Jalan Tari Payong property, the trial judge assumed that the
payment of monthly instalments were in equal proportions as it was a joint
loan and “[n]owhere in the evidence was it stated who paid for the monthly
instalments of the housing loan” (see the High Court decision at [61]).
However, she also considered the amount of the purchase price covered
by the short-term loan and the overdraft account secured on the Fowlie Road
property as having been contributed by Yeo. Accordingly, it was determined
that 65% of the beneficial interest of the Jalan Tari Payong property was to be
apportioned to the Estate, and 35% was to be apportioned to the appellant.
16 The trial judge, after assessing the applicability of the presumption of
advancement, found that it did not displace the presumption of a resulting
trust on the facts. She opined that the “Singapore courts [had] moved away
from the presumption of advancement on the basis that the presumption of
advancement [was] no longer applicable in modern times unless there [was]
evidence to support the same”; it was to be treated as an evidential instrument

of last resort where there was no direct evidence as to the intention of the
parties rather than as an oft-applied rule of thumb (see the High Court
decision at [65]–[66]). On the facts, the judge held that the presumption of
advancement between husband and wife would not apply as it was a reverse
situation in the present case – Yeo, the husband, did not work and it was the
appellant wife who worked and was the apparent breadwinner. Therefore,
there was no evidence comporting with any purported intention on the part of
Yeo to present the Minton Rise property or the Jalan Tari Payong property as
outright gifts to the appellant.
The parties’ contentions
The appellant’s case

17 The appellant contended that the trial judge erred in holding that there
was a resulting trust over the Properties in favour of the Estate. The evidence
showed that Yeo intended to ensure that the appellant would benefit from
the acquisition of the Properties and that upon his death, she would inherit
his interest. Yeo and the appellant were duly advised by their solicitors,
and were fully aware of the operation of the right of survivorship when they
purchased the Properties in joint names and as joint tenants. In addition, the
appellant also disputed the trial judge’s computation of the parties’ respective
contributions towards the acquisition of the Properties.
18 Counsel for the appellant submitted during the hearing before us that the
strength of the presumption of resulting trust would vary from case to case; in
cases where the parties were related, and especially in an intimate relationship
such as a marriage, the presumption of resulting trust should be weak and
slight evidence should suffice to rebut it. It was also stressed that Yeo had
made a will in favour of the appellant which was only revoked by operation of
law and not voluntarily by Yeo. As such, there was no reason to presume that
Yeo had intended to retain a beneficial share of the Properties upon his demise
despite the operation of the rule of survivorship.
19 Further, the appellant’s case was that the presumption of advancement
was premised on both moral and equitable obligations, and not on financial
dependency. In the present case, there was a prima facie presumption of
advancement which would shift the burden to the respondents to show that
Yeo had not intended to benefit the appellant in their joint acquisition of the
Properties. The respondents had not discharged the burden and there should
not be any resulting trust imposed on the Properties; the appellant should, in
the circumstances, be the absolute owner of the Properties both in law and in
equity.
The respondents’ case

20 The respondents took the view that the trial judge had rightly imposed
the resulting trust on the Properties. They asserted that the only evidence
of the alleged explanation by solicitors to Yeo and the appellant on the
legal effect of joint tenancy was provided by the appellant herself during
re-examination by her own counsel, and this was unsupported by any other
independent evidence; no weight should thus be given to it. Instead, the
reason why the Properties were purchased in joint names was merely because
it was convenient and necessary in order to obtain a longer-term loan from
the banks; there was no intention on the part of Yeo to confer a benefit on the
appellant by the acquisition of the Properties.
21 Counsel for the respondents pointed out during the hearing that the fact
that Yeo had made a second will in favour of the appellant must be assessed
in the context that the Properties were purchased more than four years after
the second will was made; Yeo did not have these properties within his
contemplative horizon when the second will was executed. Furthermore,
when one considered the imposition of a resulting trust, it was the intention
of the parties which was specific to the property in question that was relevant
rather than a general intention expressed by way of a will. It was submitted
that there was inadequate evidence to rebut the presumption of resulting trust,
and, as such, there should be a resulting trust imposed on the properties in
accordance with the parties’ contributions towards acquisition.
22 Finally, with respect to the presumption of advancement, the
respondents’ stance was that the doctrine clearly existed, but it would not
apply on the facts of the present case. The application of the presumption, it
was submitted, was now limited to specific instances, such as the traditional
husband-and-wife relationship where the wife was economically dependent
on the husband. The appellant was financially independent and quite unlike
the housewife for whom the presumption would operate. In the result,
the trial judge was fully entitled to make a finding that the present case
involved a “reverse situation” which fell outside the scope of operation of the
presumption of advancement.
Equitable principles and doctrines

23 The equitable presumptions of resulting trust and advancement are
only one particular dimension of equity and they need to be assessed
against the larger backdrop of general equitable principles and doctrines. In
order to better understand these equitable presumptions and to apply them
appropriately in the modern context, it would be helpful first to examine the
court’s general equitable jurisdiction.
Historical background of equity

24 Equity is the body of principles which has evolved progressively to
mitigate the severity sometimes occasioned by the rigid application of the
rules of the common law. Its origins lay in the exercise by the Chancellor of
the residual discretionary power of the King to do justice among his subjects
in circumstances in which, for one reason or another, justice could not be
obtained in a common law court. Several centuries earlier, Aristotle conceived
equity as “a rectification of law where the law falls short by reason of its
universality” (Aristotle, Nicomachean Ethics, Book V, ch 10) and, indeed, one
of the perceived sources of inadequacy and injustice in the common law was
the generality of the law’s rules, and the law’s inability to mould its rules to fit
the circumstances of the particular case: see Patricia Loughlan, “The Historical
Role of the Equitable Jurisdiction” in The Principles of Equity (Patrick
Parkinson ed) (Lawbook Co, 2nd Ed, 2003) ch 1 (“Loughlan’s chapter”)
at p 6. Thus, the equitable jurisdiction functioned to prevent, correct
and sometimes reverse the individual failures of justice occasioned by a
rule-dependent and rule-governed decision-making forum. As Lord Ellesmere
aptly observed in the Earl of Oxford’s Case (1615) 1 Chan Rep 1 at 6; 21 ER 485
at 486:
The Cause why there is a Chancery is, for that Mens Actions are so
divers[e] and infinite, [t]hat it is impossible to make any general Law
which may aptly meet with every particular Act, and not fail in some
Circumstances.
25 In early Chancery decisions, therefore, all the circumstances of individual
cases were considered and adjudication was contextual and pragmatic. There
was no abstracting methodology, no doctrine of strict binding precedent,
and, accordingly, no commitment to the values of continuity, consistency,
uniformity and predictability which support and justify that doctrine at
common law: see Loughlan’s chapter at p 8. Over time, however, equity
has gradually metamorphosised from a jurisdiction of fluid, pragmatic,
conscience-based decision making to one founded primarily upon the
application of authoritative rules, maxims, principles and precedents. This
was a natural judicial reaction to the arbitrariness of early instances of the
exercise of equitable jurisdiction which attempted to make a virtue out of
inconsistency. Indeed, in more relevant times, for example, in Campbell
Discount Co Ltd v Bridge [1961] 1 QB 445, Harman LJ sagely cautioned against
applying equitable principles as they used to be in the early Chancery
decisions. He remarked at 459:
Equitable principles are, I think, perhaps rather too often bandied about
in common law courts as though the Chancellor still had only the length of
his own foot to measure when coming to a conclusion. Since the time of
Lord Eldon the system of equity for good or evil has been a very precise
one, and equitable jurisdiction is exercised only on well-known principles.
26 Today, paradoxically, the creativity of equity has become progressively

circumscribed and, to some extent, calcified. In fact, there has even been
cause for academic misgivings on how the rules that equity established for the
application of its principles had become so fixed that a “rigor aequitatis” had
developed and “equity itself displayed the very defect that it was designed to
remedy”: see Jill E Martin, Modern Equity (Sweet & Maxwell Ltd, 17th Ed,
2005) at para 1-002. Lord Denning had even remarked extra-judicially in “The
Need For a New Equity” (1952) 5 CLP 1 at 8 that:
The Courts of Chancery are no longer courts of equity. … They are as
fixed and immutable as the courts of law ever were.
27 The increasing rigidity of application of equitable principles
stems, perhaps understandably, from a reluctance to countenance judicial
law-making and a concern to avoid arbitrariness and uncertainty. The English
judiciary’s reluctance to undermine Parliament was manifested in Lord Lloyd
of Berwick’s judgment in Westdeutsche Landesbank Girozentrale v Islington
London Borough Council [1996] AC 669 (“Westdeutsche”) at 740:
To extend the equitable jurisdiction for the first time to cover a residual
injustice at common law, which Parliament chose not to remedy, would, I
think, be [a] great … usurpation of the role of the legislature, and [a] clear
… example of judicial law-making …
The concern to avoid uncertainty, on the other hand, is clearly exemplified by
observations such as those of Bagnall J in Cowcher v Cowcher [1972] 1 WLR
425 (“Cowcher”). These observations were made in relation to the application
of the reinvented constructive trust as a powerful proprietary remedy to be
awarded on the basis of what the judge felt was “just”, without any clear
guiding principles. He stated at 430:
I am convinced that in determining rights, particularly property rights,
the only justice that can be attained by mortals, who are fallible and are not
omniscient, is justice according to law; the justice which flows from the
application of sure and settled principles to proved or admitted facts. So in
the field of equity the length of the Chancellor’s foot has been measured or
is capable of measurement.
28 Equity’s capacity to develop new rights and remedies has not, however,
been entirely surrendered. Indeed, Bagnall J had prudently qualified his words
in Cowcher at 430 in noting:
This does not mean that equity is past childbearing; simply that its progeny
must be legitimate – by precedent out of principle. It is well that this
should be so; otherwise, no lawyer could safely advise on his client’s title
and every quarrel would lead to a law suit.
An apparent balance has thus been struck between uncertainty and judicial
law-making by way of “palm tree” justice on the one hand, and the continuing
need for equity’s creativity to mitigate the rigours of the law on the other. In
our view, this balance governs the manner in which equitable principles and
doctrines ought to be developed and applied in the modern context. The
courts should be principled and pragmatic when resolving the tension of
applying an unguided and untrammelled discretion as an antidote to the blind
acceptance of inflexible hard and fast rules.
Modern development
29 Despite the reluctance of the courts to “invent” and “create” new rights
and remedies, equity is, and must necessarily be, still capable of flexible
development to address new circumstances. Glass JA in the Australian case of
Allen v Snyder [1977] 2 NSWLR 685 recognised this, and, at the same time,
delineated the parameters within which such development should take place.
He opined at 689:
It is inevitable that judge made law will alter to meet the changing
conditions of society. That is the way it has always evolved. But it is
essential that new rules should be related to fundamental doctrine. If the
foundations of accepted doctrine be submerged under new principles,
without regard to the interaction between the two, there will be high
uncertainty as to the state of the law, both old and new.
30 That “new” rights and remedies should be developed from existing
principles and precedents rather than “plucked” seemingly from the air at the
whim of the judge was also a concern expressed by the English Court of
Appeal in In re Diplock [1948] Ch 465. It was declared at 481–482 that:
[I]f [a] claim in equity exists it must be shown to have an ancestry founded
in history and in the practice and precedents of the courts administering
equity jurisdiction. It is not sufficient that because we may think
that the “justice” of the present case requires it, we should invent such a
jurisdiction for the first time.
Indeed, this aptly corresponds to Bagnall J’s view in Cowcher that equity’s
“progeny must be legitimate – by precedent out of principle” (see [28] above).
31 Although caution has been oft-expressed with respect to the development
of new equitable principles, a number of significant developments have
nevertheless emerged in the past half-century and the courts in several
common law jurisdictions have gradually extended and developed existing
principles so as to meet modern social needs. The proprietary estoppel
doctrine is one such example. The traditional concepts of resulting and
constructive trusts have also been developed and refined to deal with joint
acquisition of residential property by married and cohabiting couples, by
diffidently acknowledging the myriad modern partnerships that now exist
between such couples; the principles of resulting and constructive trusts are
now unrecognisable from the concepts known by those names at the time of
the Judicature Acts (Supreme Court of Judicature Act 1873 (c 66) (UK) and
Supreme Court of Judicature Act 1875 (c 77) (UK)): see Robert Pearce & John
Stevens, The Law of Trusts and Equitable Obligations (Oxford University Press,
4th Ed, 2006) (“Pearce & Stevens”) at pp 29–30. As society progresses and
as lifestyles, attitudes and norms change, modern development of the law
and of equitable principles becomes inexorable, and, indeed, necessary. The
penetrating observations of Prof Pearce and Mr Stevens at p 28 of their book
are particularly pertinent:
The law is a coherent and dynamic whole, subject to constant
re-evaluation and adjustment, sometimes culminating in the birth of new
principles and doctrines. Equity has made a tremendous contribution to
this whole and the continuous process of remoulding equitable rights and
remedies should be seen as an essential part of this overall process of legal
development.
32 Finally, the four primary perspectives which should guide the court in
the development of equitable principles have been succinctly encapsulated
by Gary Watt in Trusts and Equity (Oxford University Press, 2nd Ed, 2006)
at pp 47–48 as: (a) precedent; (b) principle; (c) policy; and (d) pragmatism.
When a judge is presented with a legal problem, the judge is bound to look
first to statutory law and judicial precedent for a solution, but if it appears
to the judge that there is no clear solution in precedent, the judge should in
theory seek to produce a solution consistent with principles derived from
precedent. Judges do not, however, reach their decisions in a logical vacuum;
they are very often acutely aware of the impact that their decisions might have
upon the wider community or society at large, and are therefore sensitive
to policy considerations. Last, but by no means least, above all considerations
of principle and policy, and sometimes even above precedent, judges are
concerned to achieve a solution which works in practice and one that will not
bring the whole process into disrepute; the judicial process must be pragmatic
and sensitive to public interests. In fact, Lord Goff of Chieveley had candidly
observed in Westdeutsche ([27] supra) at 685:
It is a truism that, in deciding a question of law in any particular case,
the courts are much influenced by considerations of practical justice,
and especially by the results which would flow from the recognition of a
particular claim on the facts of the case before the court.
33 We summarise. Equity has been transformed from its early days of
decision making founded on conscience to a body of discrete rules, principles
and remedies. This move has been largely driven by a need for certainty and
consistency. However, courts must be mindful of the equal need for a legal
system which reflects contemporary societal values and caters to the modern
community. Equity must be grounded by established principles, but, at the
same time, these principles must be applied in a progressive and flexible
manner to do justice in the current context; courts cannot, and must not,
mechanically apply, in the same manner today, equitable principles which
were formulated to provide for circumstances prevalent and putatively

relevant centuries ago. It cannot be overstated how important it is to be aware
of the genesis of equity which was motivated by the compelling need to
mitigate the severity caused by, inter alia, the generality and rigidity of the
common law; equity should not, in the modern context, be applied such that
it displays the “very defect that it was designed to remedy” (see [26] above).
Principled pragmatism should be the key to the court’s approach in the
application of equitable principles. With this general approach in mind, we
turn now to consider the presumption of resulting trust and the presumption
of advancement in the present-day context.
Presumption of resulting trust

34 Resulting trusts are presumed to arise in two sets of circumstances. These
circumstances were appositely summarised by Lord Browne-Wilkinson in
Westdeutsche at 708 as follows:
Under existing law a resulting trust arises in two sets of circumstances:
(A) where A makes a voluntary payment to B or pays (wholly or in part)
for the purchase of property which is vested either in B alone or in the
joint names of A and B, there is a presumption that A did not intend to
make a gift to B: the money or property is held on trust for A (if he is
the sole provider of the money) or in the case of a joint purchase by A and
B in shares proportionate to their contributions. It is important to stress
that this is only a presumption, which presumption is easily rebutted either
by the counter-presumption of advancement or by direct evidence of A’s
intention to make an outright transfer … (B) Where A transfers property
to B on express trusts, but the trusts declared do not exhaust the whole
beneficial interest … Both types of resulting trust are traditionally regarded
as examples of trusts giving effect to the common intention of the parties.
A resulting trust is not imposed by law against the intentions of the trustee
(as is a constructive trust) but gives effect to his presumed intention.
[emphasis in original]
Resulting trusts of the second type operate to “fill the gap” in the
beneficial ownership of property where an express trust fails. Resulting
trusts of the first type, on the other hand, are commonly termed “presumed
resulting trusts”, and, as is apparent from the passage above, the presumption
of resulting trust only applies to the first set of circumstances discussed
by Lord Browne-Wilkinson. As the present case concerns the issue of
presumptions, no more needs to be said regarding resulting trusts of the
second type.
35 There is an important distinction between the presumption of resulting
trust and the resulting trust itself. The presumption is an inference of a
fact drawn from the existence of other facts, whereas the resulting trust is the
equitable response to those facts, proved or presumed: see Robert Chambers,

Resulting Trusts (Clarendon Press, Oxford, 1997) at p 32. The difference
between them is explained in Resulting Trusts (ibid) as follows:
The facts which give rise to the presumption of resulting trust are (i) a
transfer of property to another, (ii) for which the recipient does not
provide the whole of the consideration. The facts which give rise to
the resulting trust itself are (i) a transfer of property to another, (ii) in
circumstances in which the provider does not intend to benefit the
recipient.
Robert Chambers has quite appropriately highlighted two essential points:
first, that the lack of consideration required for the presumption is not a
requirement for the resulting trust; and second, that the lack of intention to
benefit the recipient required for the resulting trust is precisely the fact being
inferred when the presumption is applied. It is thus apparent that a resulting
trust may arise independently of the presumption so long as it can be
shown that the transfer was not intended to benefit the recipient; and, in a
similar vein, a resulting trust may not necessarily arise even if there was no
consideration, if it can be shown that the transfer was indeed intended to
benefit the recipient.
36 The presumption of resulting trust is based on a traditional
common-sense presumption that, outside of certain relationships, an owner
of property never intends to make a gift, and, by extension, that a person who
provides the money required to purchase a property intends to obtain an
equivalent equitable interest in the property acquired. Equity, with its superbly
realistic grasp of human motivations, “assumes bargains, and not gifts” (per
Spence J (Supreme Court of Canada) in Goodfriend v Goodfriend (1972)
22 DLR (3d) 699 at 703 quoting in turn from an article by Prof Donovan
Waters entitled “The Doctrine of Resulting Trusts in Common Law Canada”
(1970) 16 McGill LJ 187 at 199). In the normal course of events, persons who
expend large sums in the context of a purchase of land “do not harbour
particularly altruistic intentions, but really expect, regardless of the destination
of the legal title purchased, to derive a beneficial return from their investment
in the form of an aliquot share of the equity. [The] [r]esulting trust doctrine
ensures a default position which gives effect to this expectation”: see Kevin
Gray & Susan Francis Gray, Elements of Land Law (Oxford University Press,
4th Ed, 2005) (“Gray & Gray”) at para 10.12. The presumption of resulting
trust is about the intentions of property owners and, as may be distilled by the
analysis in [35] above, it is rebuttable by evidence of a contrary intention.
Lord Upjohn commented in Vandervell v Inland Revenue Commissioners
[1967] 2 AC 291 at 313:
In reality the so-called presumption of a resulting trust is no more than a
long stop to provide the answer when the relevant facts and circumstances
fail to yield a solution.
Indeed, it is also important to bear in mind the illuminating remarks made by

Lindley LJ on the purpose of trusts in Standing v Bowring (1885) 31 Ch D 282
where he dissected the framework of the presumption of resulting trust. He
stated at 289:
Trusts are neither created nor implied by law to defeat the intentions
of donors or settlors; they are created or implied or are held to result in
favour of donors or settlors in order to carry out and give effect to their
true intentions, expressed or implied.
37 It is therefore clear, from this jurisprudential analysis, that the
presumption of resulting trust is an inference or even an estimate as to what a
party’s intention is likely to be, based on certain assumptions arising from a
set of given facts. It stems from a rationalisation of human behaviour derived,
in turn, from common experience and the societal climate. Accordingly, the
instances for the application of the presumption must not remain stagnant;
instead, they must necessarily change with time as behaviour, lifestyle and
attitudes change. Murphy J illuminatingly explained this in Calverley v Green
(1984) 155 CLR 242 at 264 as follows:
Presumptions arise from common experience … If common experience is
that when one fact exists, another fact also exists, the law sensibly operates
on the basis that if the first is proved, the second is presumed. It is a
process of standardized inference. As standards of behaviour alter, so
should presumptions, otherwise the rationale for presumptions is lost, and
instead of assisting the evaluation of evidence, they may detract from it.
There is no justification for maintaining a presumption that if one fact is
proved, then another exists, if common experience is to the contrary.
Deane J had also noted, in the same case, at 270:
The weight to be given to a presumption of a resulting trust in the
resolution of what is essentially an issue of fact may vary in accordance
with changing community attitudes and with the contemporary strength
or weakness of the rationale of the rule embodying the presumption …
38 We agree. Just as all other equitable principles should be developed to
reflect contemporary societal values, so should the presumption of resulting
trust (and the presumption of advancement). In fact, this is all the more
so in the case of presumptions. The very rationale of presumptions is based
on a process of standardised inferences which are inexorably linked to
contemporary community attitudes, expectations, values and ethical norms.
As such, presumptions must remain dynamic in order to remain relevant and
functional. The question is whether, and if so how, the presumption of
resulting trust should be modified and developed to adapt to present-day
circumstances. In answering this question, one must also bear in mind that
even within communities, familial relationships are not grounded on identical
bonds or expectations; we do not live in a homogeneous society. Before we
turn to consider the appropriate application of the presumption of resulting

trust in the modern context, it may be helpful at this juncture to set out briefly
its historical origins.
Historical origins
39 Prior to the enactment of the Statute of Uses in 1536, feoffments
(historically, a grant of lands as a fee) to the use of the feoffer (one who
granted the feoffment) were often made for the purposes of devising land
by will and avoiding the feudal incidents that might become payable on its
descent to the heir. The joint ownership of several feoffees (ones to whom a
feoffment was granted) to uses, and replacement of those who died, would
ensure that the legal estate never passed by descent at all: see Resulting Trusts
([35] supra) at pp 16–17.
40 The use was described in Austin Wakeman Scott & William Franklin
Fratcher, The Law of Trusts (Little, Brown and Company, 4th Ed, 1989) vol V
at §405, pp 9–10, as follows:
During the fifteenth century the practice of conveying the legal title to land
with a reservation of the beneficial interest became so common that an
inference arose that when land was conveyed without consideration the
intention of the transferor was that the land should be held for his use. The
courts accordingly held that a transferee who gave no consideration
presumptively held upon a resulting use for the transferor. This inference
could be rebutted by showing that the use was expressly declared to be in
the transferee or in a third person. [emphasis added]
The equitable presumption of resulting trust was developed on a strict
analogy as a response to the resulting use, a rule of the common law: see
Dyer v Dyer (1788) 2 Cox 92 at 93; 30 ER 42 at 43. The social and legal
landscape of the 15th and 16th centuries as described in the above passage
thus formed the basis for the presumption of resulting trust. It cannot be
doubted that property practices in the present-day 21st century have radically
and irreversibly departed from that historical background. Hope JA wryly
commented in Dullow v Dullow (1985) 3 NSWLR 531 (“Dullow”) at 535:
It seems rather ridiculous that troubles in England at the end of the Middle
Ages should be the basis, in the late twentieth century, for making findings
of fact, for that is what the presumption essentially involves.
41 Given the very different circumstances that exist today in Singapore,
there is a fortiori a pressing need for a re-evaluation of the application of the
presumption of resulting trust against the backdrop of modern society to be
undertaken.
Presumption of fact or law?

42 Before turning to discuss the appropriate manner of application of the
presumption of resulting trust in Singapore today, however, it is important
first to consider whether the presumption should be more appropriately
characterised as one of fact or law.
43 The law recognises, either as a matter of common sense or policy, that
in certain situations, specific assumptions or presumptions need to be made.
In certain situations, these presumptions are conclusive, in which case they
are irrebuttable and must be applied by the court without qualification. In
other circumstances, the court is required to apply the presumption unless
it is disproved. The weakest form of presumption is where there is no legal
compulsion to apply it; it is left to the discretion of the court as to whether it
should operate in the circumstances of the case: see Jeffrey Pinsler, Evidence,
Advocacy and the Litigation Process (LexisNexis, 2nd Ed, 2003) at p 251. These
presumptions are respectively characterised as irrebuttable presumptions
of law, rebuttable presumptions of law and presumptions of fact. The
category within which the presumption of resulting trust falls delineates the
preliminary parameters for the court’s application of that presumption – if it
is a presumption of law, the court must apply the presumption whenever
certain specific circumstances are present from the facts of a case; if it is a
presumption of fact, however, the court has the discretion whether or not to
apply the presumption of resulting trust.
44 In Sudipto Sarkar & V R Manohar, Sarkar’s Law of Evidence (Wadhwa
and Company Nagpur, 16th Ed, 2007) (“Sarkar”), the authors lucidly explain
the basis for presumptions of fact and law at vol 1, pp 101–102:
Presumptions of fact or natural presumptions are inferences which are
naturally and logically drawn from the experience and observation of the
course of nature, the constitution of human mind, the springs of human
action, the usages and habits of society. …
…
Presumptions of law or artificial presumptions are inferences
or propositions established by law, – the inferences, which the law
peremptorily requires to be made whenever the facts appear which it
assumes as the basis of that inference. The presumptions of law are in
reality rules of law, and part of the law itself and the court may draw the
inference whenever the requisite facts are developed in pleadings [etc].
Presumptions of law are based, like presumptions of fact on the uniformity
of deduction which experience proves to be justifiable; they differ in being
invested by the law with the quality of a rule, which directs that they must be
drawn; they are not permissive like natural presumptions which may or
may not be drawn …
[original emphasis in bold italics; emphasis added in italics]
45 As mentioned above at [37], the presumption of resulting trust stems

from a purported understanding of human nature derived, in turn, from
common experience and the societal climate. It appears to be a natural
presumption in that it is an inference “naturally and logically drawn from the
experience and observation of the course of nature” (see [44] above). Indeed,
Indian treatises on the law of evidence have classified “benami transactions”
(purchases made in the names of others and commonplace in India, which
bear a “curious resemblance” to the transactions triggering the operation of
the presumption of resulting trust: see Bilas Kunwar v Desraj Ranjit Singh
AIR 1915 PC 96) as falling under s 114 of the Indian Evidence Act 1872,
the equivalent of s 116 of our Evidence Act (Cap 97, 1997 Rev Ed), which
generally encompasses presumptions of fact: see, for example, vol 2 of Sarkar
at p 1853 and vol III of Sripada Venkata Joga Rao, Sir John Woodroffe & Syed
Amir Ali’s Law of Evidence (LexisNexis Butterworths, 17th Ed, 2002) (“Law of
Evidence”) at p 4700. It is our view, however, that although the presumption of
resulting trust was derived from an understanding of human nature based on
experience, much like how the presumption arising in “benami transactions”
was drawn from common experience in India, the former presumption, unlike
the latter, has been elevated to become a rule of law. It is a principle of equity,
which though also based on the “uniformity of deduction which experience
proves to be justifiable”, is additionally imbued or “invested by the law with
the quality of a rule” (see [44] above).
46 As such, we characterise the presumption of resulting trust as a
rebuttable presumption of law which will arise whenever the circumstances set
out in the extract at [34] above are present. We note, however, that though
the presumption of resulting trust must be applied in those circumstances,
the strength of the presumption must vary according to the facts of the
case and the contemporary community attitudes and norms. In fact, given
the necessary nuances that this approach entails, one might even view the
presumption of resulting trust as a mixed presumption of law and of fact.
Modern-day application
Abolishing the presumption of resulting trust?

47 The presumption of resulting trust, in its original unvarnished form, has
been subjected to strident criticism, especially in Australia. The operation
of the presumption is often regarded as archaic and anachronistic, and the
presumption appears to enshrine outdated values. Apart from Hope JA’s
disapproval of the presumption based on its historical origins in Dullow (see
[40] above), McHugh J in Nelson v Nelson (1995) 184 CLR 538 (“Nelson”), a
decision of the High Court of Australia, also expressed doubts as to the utility
and viability of the presumption as applied in its traditional form. He stated
at 602:
No doubt in earlier centuries, the practices and modes of thought of the

property owning classes made it more probable than not that, when a
person transferred property [without consideration], the transferor did
not intend the transferee to have the beneficial as well as the legal interest
in the property. But times change. To my mind – and, I think, to the
minds of most people – it seems much more likely that, in the absence of an
express declaration or special circumstances, the transfer of property without
consideration was intended as a gift to the transferee. That being so, there is a
strong case for examining whether the presumption of a resulting trust accords
with the effect of contemporaneous practices and modes of thought. …
A presumption is a useful aid to decision making only when it accurately
reflects the probability that a fact or state of affairs exists or has occurred.
… If the presumptions do not reflect common experience today, they may
defeat the expectations of those who are unaware of them.
[emphasis added]
48 Similarly in Dullow, Hope JA adopted the view that a very different
presumption might have been devised today but for the ancient feudal system
in which the presumption of resulting trust had its roots. He opined at 535:
Without this background [the history of the resulting use and resulting
trust], one would have thought that there could have developed principles
which assumed that when land was transferred into the name of a
person, whether with or without consideration, and no matter where the
consideration came from, that person was presumed to hold both legal and
beneficial ownership. This could be disproved and it could be shown that
the intention of the person causing the land to be transferred was to have
the beneficial ownership himself.
49 In Calverley v Green ([37] supra), Murphy J reassessed the law on
presumptions of resulting trust and concluded at 264 that the presumptions
were “inappropriate to our times, and are opposed to a rational evaluation of
property cases arising out of personal relationships”. He was of the opinion
that the presumption of resulting trust and, consequently, the presumption
of advancement, should both be discarded. In particular, he was mindful
of the Torrens system of titles in place in Australia and made the following
observations at 265:
In the absence of [the presumptions of resulting trust and advancement],
the legal title reflects the interests of the parties, unless there are
circumstances (not those false presumptions) which displace it in equity.
False presumptions which override the registered title are destructive of
an orderly Torrens title system and should not be tolerated. The Torrens
system permits the protection of interests by the use of caveats, so that the
registered title reflects the true position and prevents the Torrens system
becoming as complex as the old system.
50 These concerns have also recently found expression in an article by

an academic. Asst Prof Kelvin Low (“Low”) in his article, “The Presumption
of Advancement: A Renaissance?” (2007) 123 LQR 347 (“Low’s article”),
had questioned the rationale behind the presumption of resulting trust. He
suggests that courts must explain why equity was suspicious of gifts rather
than merely assert that that was the case, and concludes at 350 that “[a]
particularly strong case must surely be made to justify a presumption out of
step with reality and the expectations of the public”. In addition, he has quite
correctly highlighted the increasing diversity and decreasing homogeneity
of societies and expressed doubts about the suitability of any blanket
presumptions premised upon assumptions based on certain familial relations.
Finally, he postulates that there is now a clear case for the abolition of the
presumption of resulting trust. The logic of this is hard to fault.
51 Low, nevertheless, recognises that despite its flaws, the presumption
of resulting trust is too firmly entrenched in the law for such a radical
development to take root immediately (Low’s article at 351). Deane J in
Calverley v Green at 266 had expressed broadly similar sentiments and stated
that the presumptions of resulting trust and advancement were too well
entrenched as “land-marks” in the law of property to be simply discarded by
judicial decision. Notwithstanding their critical remarks on the presumptions
of resulting trust and advancement, both Hope JA in Dullow and McHugh J
in Nelson ([47] supra) also took the view that the presumptions cannot now be
discarded by judicial decision and any major overhaul of the presumptions is,
all said and done, a matter for the Legislature. We agree.
A more moderate approach

52 Instead of radically abolishing the presumption of resulting trust or
“downgrading” the presumption from a rebuttable presumption of law to a
presumption of fact which may be applied in a judge’s discretion (see Low’s
article at 351), we are of the view that a more moderate and nuanced approach
is sufficient, and indeed appropriate, to align the presumption of resulting
trust with modern expectations and practices. The preferred approach
concerns the strength of the presumption which should vary when invoked in
different factual matrices. The presumption of resulting trust is certainly not,
in today’s legal landscape, an immutable rule to be applied blindly and rigidly
in the same manner to all cases; it should be given varying weight depending
upon the particular context. The quality of the evidence required to rebut
the presumption in each case should, in turn, vary with the strength of the
presumption. This approach is well supported by authoritative decisions in
common law.
53 More than a century ago, in Fowkes v Pascoe (1875) 10 Ch App 343,
Mellish LJ pressed for a flexible application of the presumption of resulting
trust. He stated at 352–353:
[T]he presumption must, beyond all question, be of very different weight

in different cases. In some cases it would be very strong indeed. If, for
instance, a man invested a sum of stock in the name of himself and his
solicitor, the inference would be very strong indeed that it was intended
solely for the purpose of a trust, and the Court would require very strong
evidence on the part of the solicitor to prove that it was intended as a gift;
and certainly his own evidence would not be sufficient. On the other hand,
a man may make an investment of stock in the name of himself and some
person, although not a child or wife, yet in such a position to him as to
make it extremely probable that the investment was intended as a gift. In
such a case, although the rule of law, if there was no evidence at all, would
compel the Court to say that the presumption of trust must prevail, even
if the Court might not believe that the fact was in accordance with the
presumption, yet, if there is evidence to rebut the presumption, then, in
my opinion, the Court must go into the actual facts.
This approach was followed very recently by Peter Prescott QC sitting as
Deputy Judge in Vajpeyi v Yusaf [2003] EWHC 2788 (Ch). He determined
at [71] that the evidence necessary to rebut the presumption of resulting trust
depended on the strength of the presumption, and that:
[T]he strength of the presumption depends upon the facts and
circumstances which gave rise to it. This is because the doctrine of resulting
trusts is supposed to be based on common sense. [emphasis added]
54 Similarly, in Australia, Deane J took the view that the weight to be given
to a presumption of resulting trust was variable – this variation depended on
the contemporary strength or weakness of the rationale of the rule embodying
the presumption and on community attitudes: see the extract from Calverley v
Green at [37] above. He added at 270:
The generalization that a presumption of resulting trust “should not give
way to slight circumstances” can no longer properly be accepted as an
unqualified rule. Indeed, in a case where a presumption of resulting trust
or a “presumption” of advancement applies in circumstances where
the relationship between the parties does not, as a matter of modern
experience, provide any firm rational basis for presuming either an
intention to retain the beneficial interest or an intention to confer it on the
other party, the presumption may be found to be of practical importance
only in those cases where the evidence, including evidence of the actual
relationship between the parties, does not enable the Court to make a
positive finding of intention … [emphasis added]
55 Today, it cannot be gainsaid that the strength (or weight) of the
presumption of resulting trust should vary with the context in which it is
invoked, and thus the application of the presumption of resulting trust must
be sufficiently nuanced to adequately address the myriad of modern matrices
in which the presumption might arise. This pragmatic approach affords
the courts considerable flexibility in shaping and applying the presumption
of resulting trust so as to dovetail with the present-day circumstances; in
this way, the presumption can be adjusted to meet the changing conditions
of society, and such a development is legitimate as being “by precedent out
of principle” (see [28] above). Courts should now be prepared to depart
from the archaic rigid applications of the presumption of resulting trust and
examine each set of facts which comes before them against the backdrop of
contemporary practice and attitudes. The application of the presumption in
cases concerning certain similar factual elements may, and should, however,
be broadly uniform, provided that contemporary community and social
values have been appropriately encapsulated; this will ensure the necessary
consistency and certainty in the law of resulting trusts. In adopting this
approach, courts must remain alive to the inextricable connection between
the presumption of resulting trust and the social climate of the day; the nature
of a presumption as a process of “standardized inference” (see [37] above)
based on common experience and legitimate expectations is of foremost
importance in this exercise.
Presumption of advancement
56 The presumption of advancement is an antidote to the rigid injustice
periodically occasioned by the mechanical application of the presumption of
resulting trust: In limited circumstances where a person voluntarily transfers
property into the name of another, or contributes to its purchase, the law
presumes that a gift was intended and that the transferor or contributor did
not intend to retain any interest in the property concerned. In applying the
presumptions of resulting trust and advancement, the Canadian Supreme
Court has adopted an approach that suggests one presumption would prevail
over the other right from the outset based on the facts of the case: see Pecore v
Pecore (2007) 279 DLR (4th) 513 (“Pecore”). This is exemplified, inter alia, by
the emphatic assertions made by Rothstein J at [27] and [55] of Pecore
respectively:
The presumption of resulting trust is the general rule for gratuitous
transfers. However, depending on the nature of the relationship between
the transferor and transferee, the presumption of a resulting trust will not
arise and there will be a presumption of advancement instead …
…
Where a gratuitous transfer is being challenged, the trial judge must begin
his or her inquiry by determining the proper presumption to apply and then
weigh all the evidence relating to the actual intention of the transferor to
determine whether the presumption has been rebutted.
[emphasis added]
57 We must, however, respectfully disagree with the Canadian approach.
The genesis of the presumption of advancement lay in remedying the unjust
operation of the presumption of resulting trust in certain circumstances;
its functionality is limited to, and indeed dependent on, the prior existence
of a presumed resulting trust. The unrebutted presumption of advancement
mandates that the legal title of property reflects the beneficial interests of the
parties involved. As such, the application of the presumption of resulting
trust, which divorces equitable interests from legal interests, must initially
be established before the need for the presumption of advancement even
arises. We are of the view that a two-stage test remains helpful and, indeed,
necessary. The court must first determine if the presumption of resulting
trust arises on the facts; and it is only if a resulting trust is presumed that
the presumption of advancement would apply to displace that initial
presumption. In addition, it should also be noted that the actual effect of the
presumptions of resulting trust and advancement relates to the burden of proof
in the particular case. As Abella J in Pecore astutely noted at [81]:
If the presumption of advancement applies, an individual who transfers
property into another person’s name is presumed to have intended to
make a gift to that person. The burden of proving that the transfer was
not intended to be a gift, is on the challenger to the transfer. If the
presumption of resulting trust applies, the transferor is presumed to have
intended to retain the beneficial ownership. The burden of proving that a
gift was intended, is on the recipient of the transfer. [emphasis in original]
Having set out the above preliminaries, we turn now to consider the
presumption of advancement proper.
58 The presumption of advancement typically arises as a consequence of a
pre-existing relationship between the parties to the transfer or acquisition,
where the transferor or contributor is regarded as morally obliged to provide
for the person benefiting: see Pearce & Stevens ([31] supra) at p 253. The
presumption was described by Lord Eldon in Murless v Franklin (1818)
1 Swans 13 at 17; 36 ER 278 at 280 as follows:
The general rule that on a purchase by one man in the name of another,
the nominee is a trustee for the purchaser, is subject to exception where
the purchaser is under a species of natural obligation to provide for the
nominee.
59 Just like the presumption of resulting trust, the presumption of
advancement is “no more than a long stop to provide the answer when the
relevant facts and circumstances fail to yield a solution” (see [36] above). It
should be treated as “an evidential instrument of last resort where there is no
direct evidence as to the intention of the parties rather than as an oft-applied
rule of thumb”: see Teo Siew Har v Lee Kuan Yew [1999] 4 SLR 560 (“Teo Siew
Har”) at [29]. Indeed, in Neo Tai Kim v Foe Stie Wah [1985] 1 MLJ 397 (“Neo
Tai Kim”), the Privy Council accepted that where the trial judge had found as
a fact that there was a common intention that the property in question should
be bought for the wife as the matrimonial home, the common intention by
itself established the beneficial ownership and precluded the operation of any
presumption. It is therefore apparent that the presumption of advancement

will operate only where there is no direct evidence that may reveal the
intention of the parties; only then will there be any necessity to infer or
presume intention.
60 Relationships which attract the presumption of advancement have
traditionally included transfers from husband to wife, and from father to
child. These categories of relationships have, however, been established in a
markedly different social context from the present. It goes without saying that
the application of the presumption of advancement, just like the presumption
of resulting trust, should be assessed in accordance with contemporary norms.
Indeed, the two traditional categories of relationships have each already been
remoulded and refined in different jurisdictions as social realities and practices
have changed over time. Nevertheless, further extension and extrapolation
may be appropriate, and indeed required, to cater to the myriad matrices
that prevail in today’s society. As Deane J sagely noted in Calverley v Green
([37] supra) at 268, the categories of relationships to which the presumption
of advancement applies are not “finally settled or closed”. He was of the view
(ibid) that:
It is arguable that [the categories of relationships] should be adjusted to
reflect modern concepts of the equality in status and obligations of a wife
vis-à-vis a husband … and of a mother vis-à-vis a father … Any adjustment
of those relationships must however, be made by reference to logical necessity
and analogy and not by reference to idiosyncratic notions of what is fair and
appropriate. [emphasis added]
This passage has been adopted and endorsed by our local High Court in
Damayanti Kantilal Doshi v Shobhana J Doshi [1998] 1 SLR 530 at [26]. We
agree. There can be no doubt that the approach of principled pragmatism
should also be adopted in the courts’ modern application of the presumption
of advancement.
61 That the presumption of advancement must be applied in tandem with
the contemporary societal climate is also exemplified by the outright rejection
of the presumption in India. It is well-settled law that there is no presumption
of advancement in Indian laws: see vol III of Law of Evidence ([45] supra)
at p 3656 and vol 2 of Sarkar ([44] supra) at p 1853. This is due to the
widespread and persistent practice of making “benami” transfers (see [45]
above for a brief explanation of these transactions) for no obvious reason
or apparent purpose. This palpably illustrates that the application of the
presumption of advancement must be considered against the backdrop of
the particular community; there should not be a blind adherence or slavish
application of the presumption simply to dovetail with the English approach.
The rejection of the presumption of advancement in India reflects a
recognition that the logical and apt operation of the presumption in England
does not translate to an equally appropriate operation in India, which has a
vastly different culture and popular mindset. In the case of Singapore, the
differences between our local climate and the English system are not as stark
and the presumption of advancement still accords with the community’s
contemporary societal norms and expectations in particular situations.
Nevertheless, there will inevitably be certain inherent divergences in the
attitudes and norms of any two countries, especially where one is oriental and
the other, occidental; in fact, these divergences would also exist even amongst
different communities within a society. As such, it is vital that the application
of the presumption of advancement be nuanced in accordance with the
particular context.
Parent-child relationships
62 We turn, first, to consider briefly the parent-child relationships which
give rise to the presumption of advancement. Traditionally, there was a strong
presumption of advancement between a father and his child. In In re Roberts,
deceased [1946] Ch 1, Evershed J held at 5:
It is well-established that a father making payments on behalf of a son
prima facie, and in the absence of contrary evidence, is to be taken to be
making and intending an advance in favour of the son and for his benefit.
This application of the presumption of advancement was subsequently
extrapolated to include the relationship between a child and a person standing
in loco parentis. Jessel MR explained the rationale for this extension of the
presumption in Bennet v Bennet (1879) 10 Ch D 474 (“Bennet”) at 477 as
follows:
[A]s regards a child, a person not the father of the child may put himself in
the position of one in loco parentis to the child, and so incur the obligation
to make a provision for the child.
63 Given that the presumption of advancement arises in the case of a child
vis-à-vis his or her father, or a person standing in loco parentis, the courts’
long-standing rejection of the presumption in the case of a child vis-à-vis his
or her mother appears to be a curious anomaly especially when viewed in the
present social context. The reason for this differentiation between a mother
and a father or even a mother and a person standing in loco parentis was set
out by Jessel MR in Bennet at 478:
[I]n our law there is no moral legal obligation … no obligation according
to the rules of equity… on a mother to provide for her child: there is no
such obligation as a Court of Equity recognises as such.
Such reasoning embodies archaic patriarchal concepts of the family. In
the modern social context, mothers must almost invariably share the
responsibility to provide for their children: see Pearce & Stevens ([31] supra)
at p 255; see also s 68 of the Women’s Charter (Cap 353, 1997 Rev Ed) which
provides that it shall be the duty of every parent to maintain or contribute to
the maintenance of his or her children. Indeed, the logic behind this reasoning
had raised doubts even as early as in the late 19th century. In Sayre v Hughes
(1868) LR 5 Eq 376, Sir John Stuart VC astutely observed at 381:
It has been argued that a mother is not a person bound to make an
advancement to her child, and that a widowed mother is not a person
standing in such a relation to her child as to raise a presumption that in a
transaction of this kind a benefit was intended for the child. But the case of
a stranger who stands in loco parentis seems not so strong as that of a mother.
In the case of Re De Visme it was said that a mother does not stand in such
a relationship to a child as to raise a presumption of benefit for the child.
The question in that case arose on a petition in lunacy, and it seems to
have been taken for granted that no presumption of benefit arises in the
case of a mother. But maternal affection, as a motive of bounty, is, perhaps,
the strongest of all, although the duty is not so strong as in the case of a father,
inasmuch as it is the duty of a father to advance his child. [emphasis added]
64 Despite the obvious logical flaws in the rejection of the presumption
of advancement in the case of a mother and her child, the English courts
appeared to have continued in this approach for a long period. In the
relatively recent late 20th century case of Sekhon v Alissa [1989] 2 FLR 94,
Hoffmann J had applied the presumption of resulting trust, instead of
advancement, when dealing with a case where both a mother and her
daughter had contributed to the purchase of the property conveyed into
the daughter’s sole name. The mother was eventually held to have some
interest in the property to the extent of the amount of her contribution, as
there was insufficient evidence to rebut the presumption of resulting trust.
This traditional distinction between a mother and a father for the purposes
of applying the presumption of advancement has been quite correctly
trenchantly criticised by academics as being “hopelessly out of touch with the
egalitarian nature of contemporary society” (see Gray & Gray ([36] supra)
at para 10.30). English courts have attempted to get around the conventional
gender bias of the presumption of advancement by requiring very little
evidence to prove a mother’s donative intent to her child, for example,
Jessel MR had noted in Bennet that there was “very little additional motive
required to induce a mother to make a gift to her child” (at 480). More
recently, however, it may be distilled from some cases a tentative inclination,
on the part of the English courts, to depart from the artificial and historical
distinction between a paternal and a maternal relationship. In In re Cameron,
decd [1999] Ch 386, Lindsay J opined at [52] that in the light of the difference
between Victorian and modern attitudes to the ownership and ability to
dispose of property, both parents (instead of just the father) should nowadays
be taken to be in loco parentis unless the contrary was proved. Although that
case was concerned with whether a gift was a “portion” made in order to
establish a child in life or make substantial provision for him, Lindsay J’s
remarks probably reflect the modern trend in English judicial attitudes
towards the relationship between a mother and her child, and herald a
plausible avenue by which the presumption of advancement should be
developed so that it has application to a mother-child relationship. Indeed, at
least one academic has opined that Lindsay J’s views should now also be taken
as applicable to the presumption of advancement generally: see Philip H Pettit,
Equity and the Law of Trusts (Butterworths, 9th Ed, 2001) at p 172.
65 In Australia, the courts appear less reticent in advocating the modern
application of the presumption of advancement equally in both father-child
and mother-child relationships. In Dullow ([40] supra), Hope JA found it
unnecessary in the circumstances to consider what the correct principle was in
relation to any presumption of advancement when a mother placed property
in the name of a child. However, he did remark in obiter at 541 that:
[A]s at present advised, I think that if the law is to be left constrained by
presumptions, the same presumption should apply to gifts to children by
both mother and father.
Similarly, in Brown v Brown (1993) 31 NSWLR 582 at 591, Gleeson CJ was of
the view that, in modern times, the drawing of any rigid distinction between
parents “may be accepted to be inappropriate”. Kirby P, in the same case
at 599, supported the principle that the presumption of advancement, if it is
still to be applied today, “must be applied equally to gifts by mothers … as by
fathers”.
66 Finally, in 1995, it was held by the High Court of Australia that a
presumption of advancement should indeed operate between a mother
and her child: see Nelson ([47] supra). Although in that case the presumption
of advancement was found to be rebutted by the evidence of the mother’s
intention to hold the beneficial interest herself, that should not detract from
the fact that the Australian courts have definitively and conclusively departed
from the traditional limits on the application of the presumption of
advancement. In approving the Supreme Court of New South Wales’
extension of the presumption of advancement, Dawson J opined at 576 that
there was no longer any justification for maintaining the distinction between a
father and a mother in the application of the presumption of advancement.
McHugh J adopted a similar stance on this issue and explained this at 601 in
the following terms:
While the presumption of advancement continues to apply to transfers of
property between father and child, consistency of doctrine requires that
the presumption should also apply to transfers of property by a mother to
her child. If the presumption of advancement arises, as Sir George Jessel
thought, from the obligation of a father to provide for his child, the
mother as well as the father now has a legal obligation to support their
child. But independently of any legal obligation of a mother, it would not
accord with the reality of society today for the law to presume that only a
father has a moral obligation to support or is in a position to advance the
interests of a child of the marriage.
67 It is, therefore, clear that there have been a number of recent
developments to the presumption of advancement, by an extrapolation of
the father-child relationship, which traditionally attracts the operation of the
presumption. Indeed, it has been emphatically acknowledged that “to treat
the established categories [of relationships giving rise to the presumption
of advancement] as frozen in time … would not be characteristic of the
doctrines of equity” (per Gibbs CJ in Calverley v Green ([37] supra) at 250). An
extension and/or modification of the traditional categories to accord with
modern views would, to our minds, allow for the flexibility and dynamism
that is especially necessary in the application of historical equitable doctrines
while maintaining a sufficient nexus to fundamental doctrine. Further, just as
how the presumption of resulting trust may vary in strength according to the
factual circumstances in each case, we are of the view that the presumption of
advancement may similarly vary.
68 One possible factor within the parent-child category which could affect
the weight of the presumption of advancement may be the number of children
the parent (or person standing in loco parentis) has; ceteris paribus, the greater
the number of children one has, the less likely that a transfer of property
of substantial value to a single child without similar provision for the
other children would be intended as a pure gift to that child. Of course, the
presumption of advancement should still operate in such a case, but it is likely
that less weighty evidence would be required to rebut the presumption of a
gift as compared to a case where the recipient child was the only child of the
transferor parent. All the circumstances of the case must be considered. For
example, if a transfer were made by a parent to the only child of majority age
in a family of several children, the presumption of advancement may have
only slight relevance. At this point, it should briefly be mentioned that, despite
the majority view in Pecore ([56] supra) that the presumption of advancement
in parent-child relationships should not apply to independent adult children,
we do not see any reason to confine the application of the presumption in the
same manner. Indeed, we are more inclined to the view of Abella J in Pecore,
which regarded the presumption of advancement as emerging no less from
affection than from dependency and thus would logically apply to all
gratuitous transfers from parents to any of their children, regardless of the
age of the child or dependency of the child on the parent (see [90]–[103]
of Pecore). The present case is, however, unconcerned with the parent-child
relationship; thus, there is no necessity for us to make any firm
pronouncements in relation to this category of relationships, or to dwell on
this issue any further.
Spousal relationships
69 The spousal relationship between Yeo and the appellant lies at the heart
of the present appeal; as such, it is important to turn now to this category of
relationships which attracts the operation of the presumption of advancement.
70 As mentioned, the presumption of advancement typically arises between
a husband and his wife. The principle was stated by Malins VC in In re Eykyn’s
Trusts (1877) 6 Ch D 115 at 118 as follows:
The law of this Court is perfectly settled that when a husband transfers
money or other property into the name of his wife only, then the
presumption is, that it is intended as a gift or advancement to the wife
absolutely at once, subject to such marital control as he may exercise. And
if a husband invests money, stocks, or otherwise, in the names of himself
and his wife, then also it is an advancement for the benefit of the wife
absolutely if she survives her husband …
The husband-wife relationship which attracts the presumption of
advancement has been subsequently extended to include a situation where
the transferor or contributor husband is engaged to be married to the
beneficiary wife and they do not subsequently break their engagement to
marry each other.
71 In Moate v Moate [1948] 2 All ER 486 (“Moate”), Jenkins J explained the
compelling logic of this extension at 487 as follows:
I can see no practical distinction … between a transfer by an intending
husband to an intending wife and a transfer as between a husband
and a wife. The reason for presuming advancement is stronger where
the gift is made in contemplation of the marriage before it is actually
solemnised than it is where the transaction is post-nuptial. It seems to me
the presumption would be, in the former case, that the intending husband
is making a gift to the lady in consideration of the marriage, a gift by
way of wedding present which he intends to take effect in her favour
beneficially provided the marriage is duly solemnised. I, therefore, hold
that the presumption in this case is that the husband intended this to be a
provision by way of gift to his wife provided the marriage was duly
solemnised.
The High Court of Australia has similarly held in Wirth v Wirth (1956)
98 CLR 228 (“Wirth”) that a transfer of property by a prospective husband
to his intended wife made in contemplation of the marriage for which they
had contracted raises a presumption of advancement just as a similar transfer
made after the celebration of the marriage raises the same presumption. In
coming to this conclusion, Dixon CJ remarked at 238:
To say that a transfer of property to an intended wife made in
contemplation of the marriage raised a presumption of a resulting trust
but a similar transfer made immediately after the celebration of
the marriage raised a presumption of advancement involves almost a

paradoxical distinction that does not accord with reason and can find a
justification only on the ground that the doctrine depends in categories
closed for historical reasons. That is not characteristic of doctrines of
equity.
72 It appears, therefore, that the courts are willing to modify and extend
the established categories of relationships to which the presumption of
advancement applies, to accommodate the contemporary social climate and
the particular circumstances in the cases which come before the court; a
steadfast and rigid adherence to the historical application of the presumption
has been rightly rejected. In fact, the Australian courts have also expressed
at least some inclination to extend the application of the presumption of
advancement even to “de facto relationships” in the light of the progressive
prevalence and openness of such relationships in recent times.
73 The conventional position is that there is no presumption of
advancement between cohabiting couples (whether sexual or homosexual),
nor between a man and his mistress: see, for example, Rider v Kidder (1805)
10 Ves 360; 32 ER 884, Soar v Foster (1858) 4 K & J 152; 70 ER 64, Allen v
Snyder ([29] supra) and Diwell v Farnes [1959] 1 WLR 624. In Calverley v
Green ([37] supra), however, although the majority rejected the application
of the presumption of advancement to a relationship “devoid of the legal
characteristic which warrants a special rule affecting the beneficial ownership
of property by the parties to a marriage” (per Mason and Brennan JJ at 260),
Gibbs CJ adopted quite a different line of argument. He observed at 250–251:
The question is whether the relationship which exists between two persons
living in a de facto relationship makes it more probable than not that a gift
was intended when property was purchased by one in the name of the
other. The answer that will be given to that question will not necessarily
be the same as that which would be given if the question were asked
concerning a man and his mistress who were not living in such a
relationship. The relationship in question is one which has proved itself to
have an apparent permanence, and in which the parties live together, and
represent themselves to others, as man and wife. … Once one rejects the test
applied in Soar v. Foster as too narrow, and rejects any notion of moral
disapproval, such as is suggested in Rider v. Kidder, as inappropriate to the
resolution of disputes as to property in the twentieth century, it seems natural
to conclude that a man who puts property in the name of a woman with
whom he is living in a de facto relationship does so because he intends her to
have a beneficial interest, and that a presumption of advancement is raised.
[emphasis added]
74 It is obvious that Gibbs CJ’s remarks were driven, at least in part, by
his pragmatism in acknowledging the changing conditions of society and a
desire to desist from the historical reasons for confining the presumption of
advancement to cases of legal spouses. Though his remains the lone voice
advocating for such a change, academics have acknowledged that it is arguable

that changing social attitudes to de facto relationships, especially where they
are recognised legislatively, should be reflected by the courts in the application
of the presumption of advancement: see G E Dal Pont & D R C Chalmers,
Equity and Trusts in Australia and New Zealand (LBC Information Services,
2nd Ed, 2000) at p 591. However, given that legislative recognition and
public consensus about the status of de facto relationships have yet to emerge
locally, any development along the lines envisaged by Gibbs CJ may be, in
our view, presently unwarranted. The point to be highlighted here is simply
that equitable principles such as the presumption of advancement should
constantly be re-examined and adjusted in the light of contemporary reality
and this approach has quite correctly and undoubtedly been adopted by
foreign courts, albeit in varying degrees.
75 In order to ensure that the presumption of advancement dovetails with
modern norms and expectations, courts have also increasingly regarded the
presumption to be of varying strength in spousal relationships characterised
by different dynamics. In Pettitt v Pettitt [1970] AC 777 (“Pettitt”), Lord Reid,
with his customary acuity, observed that the strength of the presumption
of advancement, when applied to spousal relationships, should generally be
considered as having diminished significance. He stated at 793:
I do not know how this presumption first arose, but it would seem that the
judges who first gave effect to it must have thought either that husbands
so commonly intended to make gifts in the circumstances in which the
presumption arises that it was proper to assume this where there was no
evidence, or that wives’ economic dependence on their husbands made it
necessary as a matter of public policy to give them this advantage. I can see
no other reasonable basis for the presumption. These considerations have
largely lost their force under present conditions, and, unless the law has
lost all flexibility so that the courts can no longer adapt it to changing
conditions, the strength of the presumption must have been much
diminished.
In the same case, Lord Upjohn acknowledged at 813 that the presumptions
of resulting trust and advancement “have been criticised as being out of
touch with the realities of today”, but he nevertheless remained optimistic
that “when properly understood and properly applied to the circumstances
of today”, the presumptions “remain as useful as ever in solving questions
of title”. Nevertheless, he appeared to have regarded the ready rebuttal of the
presumptions by “comparatively slight evidence” as the proper application of
these presumptions then (at 814).
76 Locally, the Court of Appeal recently considered the presumption of
advancement in some detail in Low Gim Siah v Low Geok Khim [2007] 1 SLR
795 (“Low Gim Siah”). Chan Sek Keong CJ, in delivering the judgment of the
court, accepted that the presumption of advancement was generally of varying
strength in different circumstances; he opined at [33] that:
[T]he amount of evidence required to rebut the presumption would

depend on the strength of the presumption, ie, how readily the court
would be prepared to make the presumption.
Chan CJ further pronounced on the application of the presumption in certain
spousal relationships at [43]–[44] as follows:
In our view, it is correct to say that the cases where the presumption
of advancement was held to have lost its robustness or diminished in
importance were cases concerning joint contributions by married couples
in acquiring the matrimonial home or properties acquired using joint
savings. They were not concerned with the traditional and well-established
categories of father-and-child and husband-and-wife relationships where
one party is under a moral or equitable obligation to support the other
party.
… The presumption of advancement has been applied in England in such
relationships for over two centuries and justified on the basis of a moral or
equitable obligation on the part of one to care for the other. Such moral
obligations do not change even if social conditions change. Hence, we
find it difficult to accept an argument that in modern Singapore, fathers
and husbands have somehow changed their paternal or marital obligations
so radically that the presumption is no longer applicable or should not
be applied. There is no doubt that many married women in Singapore
are financially independent of their husbands. But there are also many of
them who are not or who choose to be housewives in order to look after
their husbands, their children and their homes. … In our view, in the
case of such relationships, there is no reason to treat the presumption of
advancement as having lost its robustness or diminished in its vigour, and
there is no reason why it should not be applied to resolve questions of title
in the absence of any evidence indicating otherwise.
[emphasis in original]
77 We maintain the view expressed in Low Gim Siah. The presumption of
advancement is still very relevant today in the established (both traditional
and extended) categories of relationships; it is the strength of the presumption
that should vary with the circumstances in accordance with modern social
conditions. Thus, on this point, we must respectfully depart from the learned
trial judge’s bare assertion that the Singapore courts had moved away from
the presumption of advancement and that the presumption was no longer
applicable in modern times unless there was evidence to support it (see [16]
above). In fact, we find that the strength of the presumption of advancement,
whether in cases concerning spouses or otherwise, should not even be
generally diminished as appeared to be suggested in Pettitt. Instead, it should
only be where the present realities are such that the putative intention
inherent in the presumption of advancement is not readily inferable from the
circumstances of the case, that the presumption would be a weak one easily
rebuttable by any slight contrary evidence.
78 The overall aim of the presumption of advancement is to discern

the intention of the transferor. As Gibbs CJ remarked in Calverley v Green
([37] supra) at 250:
The presumption should be held to be raised when the relationship between
the parties is such that it is more probable than not that a beneficial interest
was intended to be conferred, whether or not the purchaser owed the other a
legal or moral duty of support. [emphasis added]
The nuanced, fact-sensitive approach advocated in Low Gim Siah is therefore
preferred; all the circumstances of the case should be taken into account by the
court when assessing how strongly the presumption of advancement should be
applied in the particular case. The financial dependence of the recipient on the
transferor or contributor, mentioned in Low Gim Siah, is but one factor which
may affect the strength of the presumption of advancement. In our judgment,
two key elements are crucial in determining the strength of the presumption
of advancement in any given case: first, the nature of the relationship between
the parties (for example, the obligation (legal, moral or otherwise) that one
party has towards another or the dependency between the parties); and second,
the state of the relationship (for example, whether the relationship is a close
and caring one or one of formal convenience). The court should consider
whether, in the entirety of the circumstances, it is readily presumed that
the transferor or contributor intended to make a gift to the recipient and, if
so, whether the evidence is sufficient to rebut the presumption, given the
appropriate strength of the presumption in that case.
Relevance of the Women’s Charter

79 Finally, it is appropriate to consider briefly the relevance of the Women’s
Charter in relation to the presumption of advancement as applied between
spouses.
80 Sections 51 and 52 of the Women’s Charter, taken with s 112 of the same
legislation, have resulted in a “deferred community of property” approach in
the determination of the property rights of spouses. The former two sections
have the effect of rendering the fact, that a woman is married, irrelevant to her
proprietary interests; her entitlement to proprietary interests depends on the
same rules as the entitlement of an unmarried woman or man. The latter
section, on the other hand, has empowered the courts with a broad discretion
to divide “matrimonial assets” between spouses during or after matrimonial
proceedings to terminate their marriage; it is based on the principle of
“community of property”, under which both spouses have a joint interest in
certain property, regardless of which spouse purchased or otherwise acquired
it: see Leong Wai Kum, Principles of Family Law in Singapore (Butterworths
Asia, 1997) at pp 799–800.
81 Therefore, the “community of property” approach to the property rights

of spouses only operates where there are matrimonial proceedings terminating
a marriage. When the marriage subsists, property law, including the law of
resulting trusts, applies, without modification, to determine the respective
proprietary rights of spouses. The application of the ordinary rules of law
and equity relating to real and personal property are discussed by Anthony
Dickey QC in Family Law (LBC Information Services, 3rd Ed, 1997). He noted
at p 587 that “there are no special rules concerning the normal interests of
spouses in property” and continued:
It is true that a presumption of advancement – that is, of a gift – arises
upon the transfer of property to a wife either by or at the direction of
her husband where the wife is not a purchaser of the property. This
presumption supersedes the presumption of a resulting trust which
otherwise operates upon a transfer of property to a person who is not a
purchaser of it. However, the presumption of advancement is not confined
to spouses but generally speaking extends to all relationships which have
traditionally involved an obligation by one party to provide for the other. Its
rationale, like that of a resulting trust, is the presumed intention of the parties
in particular circumstances.
It is also true that different legal significance can be attributed to acts
between spouses than would otherwise be attributed to similar acts
between strangers. This, however, concerns simply a difference in the likely
intention of the parties or the reason for their actions. The substantive rules of
property law remain the same.
[emphasis added]
We agree. The presumption of advancement is not, and should not be,
affected by considerations relating to the division of matrimonial property
such as that embodied in s 112 of the Women’s Charter. It is an inquiry
as to the intentions of parties which would be, from common experience,
presumably different when particular relationships, for instance, the spousal
relationship, exist between the parties.
82 Indeed, the “community of property” principle (on which s 112 of the
Women’s Charter is based) which places particular emphasis on fairness to the
homemaker spouse and the equality of spouses which, in turn, find expression
in the interests of each party to a marriage in their property holdings, comes
into play only when there exists matrimonial proceedings resulting in a
terminated marriage. It is our view that even where a marriage is “terminated”
by the demise of one spouse, the “separation of property” principle, which
applies to spouses during the subsistence of their marriage, should continue
to apply and the parties’ respective property rights should continue to be
governed by the usual rules of property law, including the law of resulting
trusts, unmodified by considerations involving the division of matrimonial
assets. This is subject, of course, to the regulation of the succession regime
where applicable: for instance, s 7 of the Intestate Succession Act (Cap 146,
1985 Rev Ed) dictates that where a deceased dies intestate, his or her surviving
spouse will receive at least half of his or her estate; and s 3 of the Inheritance
(Family Provision) Act (Cap 138, 1985 Rev Ed) provides that where a testator
had failed to make reasonable provision for the maintenance of his or her
surviving spouse, the court may, upon application by or on behalf of the
surviving spouse, order that reasonable provision be made out of the testator’s
net estate for the maintenance of the surviving spouse. Thus, to our minds,
the need for a just determination of spousal property rights on one spouse’s
demise, given the view that marriage is an equal partnership, is sufficiently
addressed by the succession regime; there is no necessity, or indeed any basis,
to adjust or apply the presumption of advancement in line with s 112 of the
Women’s Charter.
Joint tenancies
83 We turn now to consider the presumption of resulting trust (and
correspondingly, the presumption of advancement) in relation to properties
held on joint tenancies. It is trite law that joint tenancies are generally
abhorred by equity and unless there is an express declaration or any other
intention shown to the contrary, or unless the parties have contributed to
the purchase money in equal shares, legal joint tenants of a property will be
presumed to hold that property as beneficial tenants in common of shares
proportionate to their contribution to the acquisition of that property: see for
example, Pettitt ([75] supra); Bernard v Josephs [1982] Ch 391; and Springette v
Defoe [1992] 2 FLR 388. This proposition is explained in Halsbury’s Laws of
Singapore vol 9(2) (LexisNexis, 2003) at para 110.026 as follows:
In a specialised instance, the maxim that equality is equity finds expression
in the abhorrence of a joint tenancy or correspondingly, the preference for
a tenancy in common as a form of common ownership of property. The
right of survivorship which is an incident of a joint tenancy has the effect
of divesting a deceased joint tenant of his unsevered interest and giving the
survivor the entirety of the estate, producing a disproportionate effect. The
preference for a tenancy in common means that in equity, the court
construing the intentions of the parties leans towards holding that they are
tenants in common in proportion to their contributions to the purchase
price. The parties will only be held to be joint tenants when they purchase
in equal shares and no contrary intention is shown that they were to be
otherwise than joint tenants.
It is, therefore, clear that the presumption of resulting trust (and,
consequently, the presumption of advancement) features prominently as
a means by which equity intervenes in a legal joint tenancy. In a variety
of circumstances, legal joint tenants are presumed to hold the property in
question on trust for themselves as tenants in common in accordance with their
respective contributions to the purchase price of the said property. This may
be primarily explained by the contrast between the common law presumption
of joint tenancy and equity’s inclination towards a tenancy in common.
84 There has traditionally been a common law presumption of joint tenancy
engendered, inter alia, by the following reasons: (a) the enforcement of feudal
services by feudal lords was likely to be simpler and more effective because
the right of survivorship made it more likely that the land would vest in one
tenant from whom feudal dues could be exacted; (b) the investigation of title
by purchasers was easier because joint tenants held a single title whereas each
tenant in common had a separate title; and (c) if a joint tenant died there
remained only one title whereas if a tenant in common died, his share might
be left to a number of persons thereby proliferating the number of titles to be
searched before the land could be sold as a whole (see Adrian J Bradbrook,
Susan V MacCallum & Anthony P Moore, Australian Real Property Law (LBC
Information Services, 2nd Ed, 1997) at para 10.17).
85 Equity, in contrast to common law, has preferred a tenancy in common
to a joint tenancy as the medium of co-ownership. Tenancy in common
represents certainty and fairness in the property relations of co-owners; each
tenant in common holds a fixed beneficial interest immune from the caprice
of survivorship. Thus, whereas the law has leaned in favour of joint tenancy
largely for reasons of convenience, equity has always inclined towards tenancy
in common for reasons of fairness. Although, in some extremely general sense,
it is true that “equity follows the law” and, therefore, equity’s starting
assumption is that joint tenants of the legal estate likewise hold the equitable
estate as joint tenants, this assumption is readily displaced by any of a number
of contra-indications that, regardless of the legal joint tenancy, equitable
ownership was intended to take the form of a tenancy in common (see Gray &
Gray ([36] supra) at paras 11.55–11.57). These contra-indications include
cases of unequal contributions to purchase price and purchasers who are
commercial partners or business tenants.
86 Legislation supersedes the common law presumption of joint tenancy in
many jurisdictions and the manner of co-ownership of real property at law
has generally become statutorily regulated. In England, the provisions of the
Law of Property Act 1925 (c 20) (UK) (“the 1925 Act”) extend the common
law presumption to its logical conclusion by providing that co-ownership
may never take the form of a tenancy in common, and by ensuring that all
co-ownership in distinct shares is inevitably swept into equity. The mandatory
stipulation that co-owners must hold land as joint tenants is contained in
s 34(2) of the 1925 Act, which states:
Where, after the commencement of this Act, land is expressed to be
conveyed to any person in undivided shares and those persons are of full
age, the conveyance shall (notwithstanding anything to the contrary in
this Act) operate as if the land had been expressed to be conveyed to the
grantees, or, if there are more than four grantees, to the four first named in
the conveyance, as joint tenants upon the statutory trusts hereinafter
mentioned and so as to give effect to the rights of the persons who would
have been entitled to the shares had the conveyance operated to create
those shares … [emphasis added]
The cumulative effect of the 1925 Act has been “to facilitate the purchaser of
the legal estate, who no longer faces the risk of investigating a fragmented
title”, and his task is “further eased by the fact that the maximum number of
persons who may be joint tenants of one and the same legal estate in land is
now generally restricted to four” (see Gray & Gray at para 11.21). The rigours
of this statutory mandate are mitigated by the intervention of equity, which
allows for more than four equitable co-owners of land and readily presumes
beneficial tenancies in common in appropriate cases.
87 The mandatory stipulation found in the English property legislation is
absent locally. However, there appears to be a statutory presumption, much like
the traditional presumption at common law, that co-owners hold land as joint
tenants, unless the contrary is indicated. The relevant provision in the Land
Titles Act (Cap 157, 2004 Rev Ed) (“LTA”) is s 53(1) and states as follows:
In every instrument affecting registered land, co-tenants claiming under the
instrument shall, unless they are described as tenants-in-common, hold the
land as joint tenants; and if they are described as tenants-in-common,
the shares in the registered land to be held by them shall, subject to
subsection (2), be specified in the instrument. [emphasis added]
Hence, it appears that in Singapore, in so far as registered land is in issue,
co-owners are presumed to hold land as joint tenants; it is only where the
co-owners are described as tenants in common that this default position or
presumption is displaced. As such, just as equity inclines towards a tenancy in
common when faced with the common law presumption of joint tenancy,
equity may similarly intervene in the statutory presumption of joint tenancy in
Singapore to deem, as beneficial tenants in common, co-owners holding local
registered land as joint tenants at law.
88 This was not always the case in Singapore. Section 53(1) of the LTA was
introduced by the Land Titles Act 1993 (Act 27 of 1993). In the repealed Land
Titles Act (Cap 157, 1985 Rev Ed), the only provision which dealt with the
manner of holding in the co-ownership of property was s 48(1), which stated:
Instruments affecting registered land shall disclose the full name, the
address and the occupation or conjugal status of each person claiming
thereunder, and, in the case of co-tenants, the manner in which they
intend to hold. [emphasis added]
The draftsman of Singapore’s Torrens registration scheme, John Baalman,
had commented on this provision in The Singapore Torrens System (The
Government of the State of Singapore, 1961) at p 110. He regarded the
requirement, that co-tenants state the manner in which they intend to hold
the land in question, as mandatory and indicated that the land registrar ought
to refuse registration of any instrument which failed to comply with this. He
added (ibid):
Any construction of a co-tenancy which rests on presumption – whether
it be the common law presumption of a joint tenancy, or the equitable
presumption of a tenancy in common – or any statutory presumption
which draws conclusions from the character of the parties or the nature of
their estates or interests, is confusing. Insistence on the parties expressly
describing their interests will avoid that confusion. [emphasis added]
89 Pursuant to s 48(1), as originally enacted, it appears, therefore, that the
equitable presumption of a tenancy in common might have been displaced
and rendered unnecessary, since the parties would have been mandated to
consider and decide on a manner of holding. There would have been no need
for presumptions of any sort, since the parties’ legal manner of holding would
not be a mere result of convenience and there would be no need to introduce,
and no room to accommodate, broad notions of general “fairness” as strived
for by equity. Presumptions are ultimately default judicial guidelines which
are called into play only when parties’ intentions are uncertain; where parties’
intentions on the manner of holding are clearly reflected in a legal instrument,
as envisaged by the original s 48(1), these intentions ought to be given effect
to, both legally and beneficially.
90 However, the original s 48(1) has been amended and re-enacted as
s 53(1) of the LTA. Regrettably, this change has not been clarified either
during the parliamentary debates or in the reports of the Select Committee.
Ironically, s 53(1) of the LTA presently contains a statutory presumption
similar to that abhorred by Baalman in his commentary – it presumes that
co-owners would hold land as joint tenants unless they describe themselves as
tenants in common, and appears thus to be a statutory presumption which
draws conclusions from the nature of the parties’ estates or interests, ie, the
co-ownership of land. It would seem that Parliament has now settled on a
default position where equitable presumptions may still be required to effect
justice between the parties given that they may have been presumed to be joint
tenants at law without any informed or voluntary intention on their part to
hold the land they co-own in such a manner. Admittedly, a quick perusal of
the current land transfer form shows that transferees are required to complete
the field stipulating the manner of holding of the property to be transferred.
One may suggest that the Land Registry only accepts land transfer forms in
which that field is duly completed. However, such administrative forms and
procedures must be viewed against the backdrop of the governance of primary
legislation such as the LTA, and s 53(1) of the LTA certainly seems to envisage
that parties may omit to stipulate their manner of holding of land, and
provides a catch-all default position to cater to such situations.
91 In various Australian states, the land registrars have, in fact, adopted the
approach of insisting that all instruments presented for registration that will
confer an estate or interest on two or more persons set out clearly the manner
in which the persons are to hold the estate or interest (see Douglas J Whalan,
The Torrens System in Australia (The Law Book Company Limited, 1982)
at p 102). Nevertheless, Whalan rightly acknowledges that the position where
registrarial vigilance breaks down must be considered. We find that this
point of view is also relevant locally: Even if the Land Registry may strive,
in practice, only to accept land transfer forms which expressly stipulate the
transferees’ choice of manner of holding of the property transferred, as in
the case of Australia, the default statutory position where registarial vigilance
breaks down must still be considered. This is so, even though it may be said
that, in most cases, parties do voluntarily intend to hold the land in the manner
of holding expressly stated on the certificate of title of the property.
92 The statutory presumption of joint tenancy also requires one to consider
the corresponding application of the equitable tendency towards tenancies
in common as manifested in the presumption of resulting trust arising in
particular circumstances. Under s 53(1) of the LTA, there may exist situations
where co-owners hold land as legal joint tenants without fully appreciating
or voluntarily intending the consequences of such manner of holding; there
is, therefore, room for the intervention of equity to ensure fairness between
the parties. Indeed, although co-owners may be reflected as joint tenants
in the land register, and although they will be treated as joint tenants in so
far as third parties are concerned, this does not preclude the court from
investigating the beneficial ownership of the parties inter se in order to
determine if they are to be treated as joint tenants or tenants in common
as between themselves (see In re Foley [1955] NZLR 702 at 705). Whalan
persuasively contends in The Torrens System in Australia at p 103:
Where it is probable that [the registered co-owners of land] had no
idea that the estate or interest was held by them as joint tenants or
any knowledge of the difference between such a tenancy and a tenancy in
common, and there is no direct evidence of an intention on their part to
acquire and hold the estate or interest as joint tenants, the court ought to
find in favour of a tenancy in common if there is any evidence to justify
such a finding.
93 At this point, it is pertinent for us to emphasise that it is only where the
registered co-owners of land had not made a conscious and informed choice
to hold as joint tenants at law that equity kicks in to presume a tenancy in
common. In contrast, where co-owners had expressly specified their intention
to hold land in a legal joint tenancy, there would be no cause for equity not
to follow the law; thus, in such instances, legal joint tenants should also be
beneficial joint tenants unless it may be shown that the expressly-stated
choice should be vitiated for some reason. In this respect, we note that the Law
Reform Commission of Western Australia (“LRCWA”) had astutely observed

in its Report on Joint Tenancy and Tenancy in Common (Project No 78,
November 1994) at para 2.26:
Where the nature of the co-ownership is not specified it is most likely due
to an oversight or because the transferees are not clear in their minds as to
the exact nature of their co-ownership. Rejection of instruments which do
not specify the nature of the co-ownership will force the transferees (or, in
the case of a gift, the transferors) to think about the type of co-ownership
they desire.
The LRCWA had, therefore, suggested that s 60 of the Transfer of Land Act
1893 (WA) (which deems persons registered as joint proprietors of land to
be joint tenants) should be repealed and replaced by a new provision
which requires instruments of transfer to two or more persons submitted for
registration to specify whether the co-owners are joint tenants or tenants in
common; any instrument which does not state the nature of the co-ownership
must not be registered.
94 If legislation were, in fact, amended to mandatorily require parties to
specify the manner of holding of land in the instrument of transfer, this would
ensure that all co-owners would be aware of their manner of holding in
registered land. Further, if the additional recommendation of the LRCWA –
that a simple explanation of the significance of the distinction should be
contained in the instrument of transfer – were implemented, co-owners could
be regarded as having knowingly intended to acquire and hold the estate or
interest in the manner of holding specified. This is especially so, given that
instruments of transfer are normally completed by a solicitor who should
explain to the relevant parties the legal distinction between the two types
of co-ownership so that they can make an informed choice of whichever type
of co-ownership they desire. Hence, we are of the view that if legislation were
as that suggested by the LRCWA, there would be no need, generally, for any
intervention on the part of the courts or equity to presume a completely
different beneficial manner of holding. Interestingly, as we have pointed
out earlier (see [88] above), the progenitor of the present s 53(1) of the LTA
approximated such a position.
95 However, given the present s 53(1) of the LTA, there may still be cases
whereby the co-owners of land would have been stated as holding land as
joint tenants as per the default position. It is our view, therefore, that any
steps towards the wholesale renunciation of the equitable presumption,
which mitigates the rigours of a default legal joint tenancy, may presently be
premature. Nevertheless, valuable insights may be distilled from the above
analyses and recommendations of the LRCWA. In our judgment, if cogent
evidence is adduced to show that registered co-owners had in fact exercised
their informed and voluntary intention to hold land as legal joint tenants, and
if this evidence is accepted by the court, then the presumption of resulting

trust which may arise to impose an equitable tenancy in common should
be displaced and equity should, instead, as a matter of course, follow the
law. Such evidence could take the form of sworn testimony from the solicitor
attesting to the completion of the land transfer form, or even from one of the
co-owners concerned; each case must, ultimately, be decided on its facts.
96 Having established the role of equity in the context of legal joint
tenancies in Singapore generally, we turn now to consider the specific case of
joint tenancies between spouses.
The case of joint tenancies between spouses: Interplay between the

presumptions of resulting trust and advancement
97 The present appeal centres on properties held by Yeo and the appellant
as joint tenants at law; the respondents contend that the parties were in fact
beneficial tenants in common and that the appellant should be deemed to
hold the properties on trust for both herself and the Estate, upon the demise of
Yeo. Given the wider implications and ramifications arising from a decision
on property rights in a legal joint tenancy, especially in a joint tenancy
between spouses, it is important to consider and set out the modern approach
of the courts to these cases.
98 Where married couples are concerned, authorities suggest that courts are
inclined to take a broader-brush approach when faced with the presumption
of resulting trust; there appears to be a tendency towards inferring an
intention to share equally, though in the Singapore context this is not the
correct approach: see eg, NK v NL [2007] 3 SLR 743 at [23]–[24] and [29]. In
Rimmer v Rimmer [1953] 1 QB 63, Romer LJ discussed the principles
applicable to spouses in the presumption of resulting trust. These principles
were enumerated at 76 as follows:
[F]irst, that cases between husband and wife ought not to be governed by
the same strict considerations, both at law and in equity, as are commonly
applied to the ascertainment of the respective rights of strangers when each
of them contributes to the purchase price of property, and, secondly, that
the old-established doctrine that equity leans towards equality is peculiarly
applicable to disputes between husband and wife, where the facts, as a
whole, permit of its application.
Lord Upjohn in Pettitt ([75] supra) also appraised the presumption of a
resulting trust in the matrimonial context, and espoused the view at 815 that:
[W]here both spouses contribute to the acquisition of a property … in
the absence of evidence [to the contrary] … they intended to be joint
beneficial owners and this is so whether the purchase be in the joint names
or in the name of one.
99 These observations by Lord Upjohn were subsequently considered by

Mason and Brennan JJ in the High Court of Australia (see Calverley v Green
([37] supra)). They suggested that an inference of the type postulated by
Lord Upjohn ought to qualify the basic presumption of resulting trust. They
thoughtfully added the following qualifying observations at 259–260:
It may be conceded that Lord Upjohn’s inference reflects the notion that both
spouses may contribute to the purchase of assets during the marriage (as they
often do nowadays) and that they would wish those assets to be enjoyed
together during their joint lives and to be enjoyed by the survivor when they
are separated by death. Such an inference is appropriate only as between
parties to a lifetime relationship … The exclusive union for life which is
undertaken by both spouses to a valid marriage, though defeasible and
oftentimes defeated, remains the foundation of the legal institution of
marriage … though it is no necessary element of the relationship of
de facto husband and wife. … It would be wrong to apply either the
presumption of advancement or Lord Upjohn’s inference to a relationship
devoid of the legal characteristic which warrants a special rule affecting the
beneficial ownership of property by the parties to a marriage. …
Where the contributors to the purchase price are not husband and wife,
the taking of a conveyance in their joint names is less likely to support an
inference that they intend the right of survivorship to govern their beneficial
interests.
[emphasis added]
100 Mason and Brennan JJ’s further refinement of Lord Upjohn’s inference
in Pettitt was applied recently by the High Court of Australia in The Trustees
of the Property of Cummins v Cummins (2006) 224 ALR 280 (“Cummins”). It
was unanimously held that where a husband and wife purchased property
in unequal shares and took registered title in their joint names, and where the
property was treated as their family home, they would hold the property as
joint tenants in equity as well as at law. It was stated at [71]–[72]:
The present case concerns the traditional matrimonial relationship. Here,
the following view expressed in the present edition of Professor Scott’s
work respecting beneficial ownership of the matrimonial home [The Law
of Trusts ([40] supra) vol V at p 239] should be accepted:
It is often a purely accidental circumstance whether money of the
husband or of the wife is actually used to pay the purchase price to
the vendor, whether both are contributing by money or labor to the
various expenses of the household. It is often a matter of chance
whether the family expenses are incurred and discharged or services
are rendered in the maintenance of the home before or after the
purchase.
To that may be added the statement in the same work [at pp 197–198]:
Where a husband and wife purchase a matrimonial home, each
contributing to the purchase price and title is taken in the name of
one of them, it may be inferred that it was intended that each of the
spouses should have a one-half interest in the property, regardless of
the amounts contributed by them. [footnote omitted]
That reasoning applies with added force in the present case where the
title was taken in the joint names of the spouses. There is no occasion for
equity to fasten upon the registered interest held by the joint tenants a
trust obligation representing differently proportionate interests as tenants
in common. The subsistence of the matrimonial relationship, as Mason and
Brennan JJ emphasised in Calverley v Green, supports the choice of joint
tenancy with the prospect of survivorship.
[emphasis added]
101 The weight of the authorities seems to favour a pragmatic approach
to the presumption of resulting trust in cases involving married spouses. The
strength of the presumption appears to be much weaker in cases where
married spouses who contribute jointly (whether in equal proportions or
otherwise) to the purchase of a property (in particular, their matrimonial
homes) hold that property as legal joint tenants. In such instances, there is a
presumptive inference that the parties intended to hold the property as joint
tenants in equity as well. In our judgment, this position usually accords with
reality; indeed, the operation of the rule of survivorship is consistent with the
practical workings of an ordinary, caring matrimonial relationship. However,
instead of considering this inference at the stage of the presumption of
resulting trust, we are of the view that it is more appropriately accommodated
within the framework of the presumption of advancement which should, in
any event, be raised and applied in cases concerning spouses.
102 In fact, Mason and Brennan JJ had also proposed that Lord Upjohn’s
inference might be able to qualify the presumption of advancement in favour
of a wife. This was raised at 260 where they remarked:
[I]t can be said that the antiquity of the presumption of advancement
does not preclude the elevation of such an inference to the level of a
presumption to be applied where the absence of the spouses’ common
intention leaves room for its operation. The doctrines of equity are not
ossified in history …
We agree with this approach. The presumption of advancement that
already arises between husband and wife may be developed and extended
to additionally apply in the situation where married spouses purchase
property as legal joint tenants; an intention may be inferred on the part
of the contributing spouse(s) for the operation of the rule of survivorship.

In a typical caring and amiable matrimonial relationship, it will be
more probable than not that the parties intended the absolute beneficial
ownership of the property to be conferred on the survivor. As is the case for
the other applications of the presumption of advancement, a fact-sensitive
approach must be taken as well. The nature and state of the relationship are
similarly essential when considering the application of the presumption of
advancement where spouses hold property as legal joint tenants. In addition,
other factors such as the nature of the purchase of the property itself may
affect the strength of the presumption; where the property was purchased
as a matrimonial home for the parties and did indeed so serve, the stronger
the presumption that both spouses intended for the rule of survivorship to
operate and for the beneficial ownership of the property to devolve to the
surviving spouse absolutely.
103 Some authorities now suggest that the presumption of advancement
is displaced where property is purchased by spouses jointly contributing to
the purchase price. In Equity and the Law of Trusts ([64] supra), the author
emphatically states, with respect to contributions by both spouses to the
purchase price of property, at p 179:
In this situation the role of the presumption of advancement is now
negligible. Even if the property is conveyed into the name of the wife alone
the strength of the presumption has diminished virtually to vanishing point.
[emphasis added]
This proposition appears to be based, at least partly, on Lord Upjohn’s
remarks in Pettitt ([75] supra) at 815 where he stated:
But where both spouses contribute to the acquisition of a property, then my
own view (of course in the absence of evidence) is that they intended to be
joint beneficial owners and this is so whether the purchase be in the joint
names or in the name of one. This is the result of an application of the
presumption of resulting trust. Even if the property be put in the sole
name of the wife, I would not myself treat that as a circumstance of
evidence enabling the wife to claim an advancement to her, for it is against
all probabilities of the case unless the husband’s contribution is very small.
[emphasis added]
104 Three observations are in order. First, it should be noted that the first half
of Lord Upjohn’s passage cited above was precisely the passage relied upon
by the High Court of Australia as “Lord Upjohn’s inference” which supports
the notion that where both spouses contributed to the purchase of property,
“they would wish those assets to be enjoyed together during their joint lives
and to be enjoyed by the survivor when they are separated by death” (see [99]
above). Despite rejecting the application of the presumption in these cases,
Lord Upjohn was of the view that the two contributing spouses would likely
have intended to be “joint beneficial owners”; thus leading the Australian
judges to correctly interpret his comments as an inference that in such

situations, the parties intended their beneficial interests to be governed by the
rule of survivorship.
105 This leads us to the second point: The displacement of the presumption
of advancement by Lord Upjohn in Pettitt is based on the traditional
understanding and application of the presumption as one which operates to
give the entire beneficial interest of the property to the wife immediately. On
our extension of the presumption, the intention that is presumed is not an
intention to give absolutely with immediate effect, but, rather, for the rule of
survivorship to operate to pass the absolute interest of the property to the
survivor of the two spouses. This interpretation is supported by the fact that a
resulting trust need not necessarily relate to the entire interest in the property.
The presumption of resulting trust may be rebutted as to a life interest, but
may still operate in respect of the interest in remainder: see, for example,
Napier v Public Trustee (1980) 32 ALR 153. Conversely, the intention may be
that the contributing party should receive the income from the purchased
property during his life – to this extent the resulting trust prevails, but the
property should belong to the benefiting party after his death, ie, the resulting
trust is rebutted as to the remainder: see, for example, Young v Sealey [1949]
Ch 278. We are of the view that the presumption of advancement could
similarly operate with respect to only part of the interest in the property in
question; it may be rebutted as to the life interest of a property but prevail as
to the remainder – one such case would be where a property is held on joint
tenancy and it is inferred that there is an intention for the rule of survivorship
to operate.
106 Third, and also a related point, Pettitt was a case concerned with
a matrimonial breakdown between living spouses where the joint intentions
of the parties were relevant. Although it was said in Teo Siew Har ([59]
supra) that the application of the presumption of advancement should depend
on the facts and circumstances of the case rather than on the nature of the
proceedings, matrimonial or otherwise (at [31]), the views articulated in
Pettitt appeared to pertain quite specifically to circumstances where it is the
life beneficial interest of the property that is at stake. Lord Diplock in Gissing v
Gissing [1971] AC 886 (“Gissing”) at 907 regarded Pettitt as having this
narrower embrace:
[B]ut as I understand the speeches in Pettitt v. Pettitt four of the members
of your Lordships’ House who were parties to that decision took the view
that even if the “presumption of advancement” as between husband and
wife still survived today, it could seldom have any decisive part to play in
disputes between living spouses in which some evidence would be available
in addition to the mere fact that the husband had provided part of the
purchase price of property conveyed into the name of the wife. [emphasis
added]
It is clear to us that the rejection of the presumption of advancement in

the circumstances envisaged in Pettitt was with respect to cases where both
spouses are still living. In our judgment, not only would there be more
evidence as to the intention of the parties where the spouses are both living (as
contemplated by Lord Diplock in Gissing), the proprietary interest that is in
dispute is also different from that in a case where only one spouse is surviving.
As counsel for the appellant rightly highlighted during the hearing before
us, most of the leading cases on resulting trusts, imposed between spouses
holding property as joint tenants (such as Pettitt), are cases dealing with
matrimonial matters where both living spouses wished to go behind the
legal joint tenancy either to sever the shares of the property or to obtain the
entire interest of the property independent of the other party. Indeed, we are
unaware of any leading case which imposes a resulting trust on the surviving
spouse who prima facie inherits absolutely by way of survivorship the property
previously held as joint tenants with his or her late spouse. Therefore, to our
minds, Pettitt and other like authorities do not, in any way, constrain our
extension of the presumption of advancement to all cases of joint tenancy
between spouses, leading in turn to the absolute devolution of the jointly-held
property to the surviving tenant, unless this is evidentially rebutted.
107 To summarise, both the presumption of resulting trust and the
presumption of advancement may feature whenever there is a legal joint
tenancy in place and there are unequal contributions to the purchase price of
the jointly-owned property. The presumption of resulting trust will operate
in such a situation since equity abhors joint tenancy as a form of common
ownership. The presumption of advancement, on the other hand, comes into
play to displace the presumption of resulting trust where there is a pre-existing
relationship between the parties which falls into one of the established
categories of relationships. In particular, where the joint tenants are spouses,
the presumption of advancement applies to presume an intention on the
part of the parties for the rule of survivorship to operate; the scope of the
presumption should be expanded to include (if it does not already so include)
the inference of an intention for the absolute beneficial ownership of the
property to be conferred on the surviving joint tenant. A holistic examination
of all the facts will, nevertheless, be necessary in assessing the application of
the presumption of advancement, as well as in determining the strength of the
presumption in any given case. As always, a pragmatic principled approach
must be adopted.
108 Finally, it bears reiteration that the above approach and principles apply
equally to other pre-existing relationships which attract the operation of the
presumption of advancement (such as parent-child relationships), as well as
to other property (besides real property) which may be held in joint tenancy.
In particular, in the case of bank accounts held and operated jointly by persons
in the established categories of relationships, there will be a strong inference
that the rule of survivorship is intended to apply. This may be reinforced, if

there exist bank documents which prescribe and declare the operation of
survivorship in relation to the joint account; such documents could constitute
cogent evidence of the parties’ intention that the absolute benefit of the
account should devolve to the surviving joint account-holder. Nevertheless,
this needs to be assessed in relation to the factual matrix; see Low Gim Siah
([76] supra) at [51].
109 With the general law and approach as set out above in mind, we turn
now to deal with the present appeal.
The present appeal
Whether the presumption of resulting trust arises on the facts

110 Both the Properties were held by Yeo and the appellant in their joint
names as legal joint tenants. On the present facts, equity will follow the law
and the parties will be deemed to hold the Properties as joint tenants in equity
as well, unless the parties’ contributions to the purchase price of the Properties
were unequal. Only then will Yeo and the appellant be presumed to hold the
Properties as beneficial tenants in common of shares proportionate to their
contributions to the acquisition of the Properties (see [83] above). Since the
respondents’ claim requires the court to go behind the absolute legal title of
the Properties which devolved to the appellant by way of survivorship, it is
necessary to establish that the presumption of resulting trust in fact arises.
Hence, we turn now to examine the respective contributions of Yeo and the
appellant to the purchase of the Properties.
111 It is the appellant’s case that the respondents’ position – that the funding
in respect of the Properties was provided entirely by Yeo – is factually
incorrect. She took issue with the trial judge’s computation of the respective
contributions of the parties towards the Properties and contended that the
Properties were jointly purchased and the liability was joint. The respondents,
on the other hand, argued that the larger proportion of the purchase price of
each of the Properties (if not the entire purchase price) was provided for by
Yeo; hence, there should be a resulting trust imposed on the Properties such
that the appellant, as legal absolute owner of the Properties, would hold the
Properties on trust for herself and Yeo in proportions corresponding to their
respective contributions. As equity followed the law in a joint tenancy where
the parties contributed equally to the purchase price of the property and
where there were no indications of contrary intention, it was, therefore, crucial
to consider the respective contributions of Yeo and the appellant in order to
determine if the present case was encompassed within the scope of operation
of the presumption of resulting trust.
Time at which respective contributions of the parties should be determined

112 A resulting trust crystallises at the time the property is acquired: see
Curley v Parkes [2004] EWCA Civ 1515. The extent of the beneficial interests
of the respective parties where a resulting trust arises must be determined
at the time when the property was purchased and the trust created (per
Gibbs CJ, Calverley v Green ([37] supra) at 252); ex hypothesi, the respective
contributions of the parties to the purchase price of the property, which
when unequal gives rise to a presumption of resulting trust, must similarly
be determined at the time of acquisition of the property in question. This
may not, however, be entirely uncontroversial – there are authorities, which
seem to suggest that all contributions by the parties to the acquisition of the
property, up to the time of adjudication, may be considered by the courts in
determining the existence and the scope of a resulting trust. For example, it
was stated by Lord Denning MR in Bernard v Josephs ([83] supra) at 398:
As between husband and wife, when the house is in joint names and there
is no declaration of trust, the shares are usually to be ascertained by
reference to their respective contributions – just as when it is in the name
of one or other only. The share of each depends on all the circumstances of
the case, taking into account their contributions at the time of acquisition of
the house: and, in addition, their contributions in cash, or in kind, or in
services – up to the time of separation. [emphasis added]
113 However, Bernard v Josephs appears not to have drawn a clear distinction
between resulting and constructive trusts. Indeed, there was no mention of
“resulting trusts” in Lord Denning’s judgment. The thrust of his decision was
to apportion a property between an engaged couple whose engagement had
broken down. The case was analogised to one of a matrimonial breakdown
and the judgment centred on doing justice to the parties by taking into
consideration all their contributions to the acquisition of the property. The
relevant contributions taken into consideration by Lord Denning included
contributions in kind and in services. This is more consistent with the concept
of a constructive trust. A court will impose a constructive trust on a party
where it would be inequitable to allow that party to deny to another party a
beneficial interest in the land acquired; this necessitates the consideration of
all contributions by the parties, money or otherwise. A resulting trust, on the
other hand, is in theory strictly based on the parties’ respective contributions
to the purchase price of the property, and each party’s entitlement to the
beneficial interest of the property is the exact mathematical equivalent of his
or her contribution. The distinction between the two types of implied trusts
is apparent from Midland Bank plc v Cooke [1995] 4 All ER 562 where
Mrs Cooke was entitled to a 6.74% share of the beneficial interest of a house
by way of a presumed resulting trust but was awarded a 50% share by
the court by way of a constructive trust, taking into account all her indirect
contributions to the house. Lord Denning in Bernard v Josephs appeared to
have amalgamated the two types of trusts and to have focused simply on
a fair apportionment of the property between the parties upon the breakdown
of their relationship. In our view, his consideration of contributions up
to the time of separation was more appropriate for the imposition of a
constructive trust; for the purposes of presuming a resulting trust, the parties’
contributions that are to be considered should instead be confined to those
made at the time of the acquisition of the property.
Nature of contributions which give rise to the presumption of resulting trust

114 Pearce & Stevens ([31] supra) state unequivocally at p 243 that:
Whilst “indirect” contributions may constitute sufficient detriment to call
for the imposition of a constructive trust if there was an express common
intention to share the ownership of the land, only “direct” contributions
to the purchase price will give rise to a presumption of resulting trust in
favour of the contributor.
The question then is: What amounts to a “direct” contribution to the purchase
price?
115 It has been held that the payment of mortgage instalments should not
be regarded as a direct contribution to the purchase price of a property: see
Calverley v Green ([37] supra). Mason and Brennan JJ explained at 257–258:
The payment of instalments under the mortgage was not a payment of the
purchase price but a payment towards securing the release of the charge
which the parties created over the property purchased.
A similar position was taken by the English Court of Appeal in Curley v Parkes.
Peter Gibson LJ stated at [14] of his judgment:
Because of the liability assumed by the mortgagor in a case where
monies are borrowed by the mortgagor to be used on the purchase, the
mortgagor is treated as having provided the proportion of the purchase
price attributable to the monies so borrowed. Subsequent payments of the
mortgage instalments are not part of the purchase price already paid to the
vendor, but are sums paid for discharging the mortgagor’s obligations
under the mortgage ...
116 A distinction may, however, be drawn between contributions made to
the repayment of a mortgage on the basis of an agreement made when the
mortgage is taken out, and subsequent payments of mortgage instalments.
In the former case, the payment of mortgage instalments pursuant to the
agreement between the parties will be “direct” contributions to the purchase
price and will give rise to a resulting trust. This was the case in Cowcher v
Cowcher ([27] supra) where Bagnall J held that a resulting trust was presumed
in favour of the wife who had made some of the repayments on a mortgage
taken out by her husband, pursuant to a prior agreement between them. The
concept of a prior agreement prevailing over any prima facie “direct”
contribution as a relevant consideration for the presumption of resulting trust

also manifests itself in “bridging finance” cases. Wheeler J discussed these
cases in Bertei v Feher [2000] WASCA 165 at [44]:
For example, where finance is raised, which is plainly intended to be
“bridging finance” it seems to me that it may be undesirably artificial to
say that it is the money raised under the mortgage for which, temporarily,
both parties may be liable, rather than what is intended to be the ultimate
source of funding, (for example, money from the sale of one party’s
home) which constitutes the payment of the purchase price. Similarly, for
example, if a relative of one of the parties provides the whole or some of
the purchase price as a short term measure until that party is able to obtain
funds from, for example, access to a fixed term investment, it would not,
I think, be correct to regard that relative as the person making the
contribution to the purchase price.
117 It is difficult to fault the logic of this. Therefore, the court will, and
should, give effect to any agreement between the parties at the time of
acquiring the property in question as to the ultimate source of funds for the
purchase of that property. However, in the absence of any such agreement, the
payment of mortgage instalments or other financial contributions subsequent
to the initial acquisition of the property will not give rise to any beneficial
interest by way of a resulting trust.
118 Having established the principles to be applied in the determination
of the respective relevant contributions of Yeo and the appellant in the
acquisition of the Properties, the pertinent issue is whether a presumption of
resulting trust should arise on the present facts.
The Minton Rise property

119 The purchase price of the Minton Rise property ($495,000) was paid
fully by a housing loan of $396,000 jointly obtained by Yeo and the appellant,
as well as $99,000 from an overdraft account in Yeo’s sole name. These are
the relevant sums for consideration in determining the respective direct
contributions of the parties for our purposes. Undue emphasis should not
be placed on the repayment of the mortgage instalments. Regardless of who
was responsible for subsequent repayments of the housing loan, Yeo and the
appellant should each be taken as having contributed half of the amount of the
housing loan towards the purchase price of the Minton Rise property since
both of them have assumed liability for the loan jointly: see Curley v Parkes. To
this extent, we must respectfully depart from the learned trial judge’s analysis
in which she took into account the payment of the monthly mortgage
instalments (see [14] above).
120 With respect to the $99,000 paid from Yeo’s overdraft account, the
appellant sought to argue that this sum was a joint contribution by both Yeo
and the appellant as the overdraft facility from which the sum was paid was
subsequently discharged by another loan jointly obtained from Standard

Chartered Bank by both Yeo and the appellant. We are of the view, however,
that the initial $99,000 drawn from Yeo’s overdraft account should prima
facie be the direct contribution relevant in presuming a resulting trust; the
subsequent discharge of the facility by the joint loan is analogous to the
repayment of mortgage instalments – it is not part of the purchase price
already paid to the vendor, but merely goes towards discharging Yeo’s
obligations under his overdraft facility. The subsequent discharge of
the overdraft account by the joint loan will only be relevant as a direct
contribution to purchase price if there can be shown to be a prior agreement
between the parties at the time of purchase of the Minton Rise property that
the use of moneys from Yeo’s overdraft account for the purchase price was
merely a form of temporary bridging finance and that it was intended that Yeo
and the appellant jointly take out a loan to discharge that overdraft facility. No
such prior agreement is apparent from the evidence adduced by the parties.
Admittedly, the joint loan that had purportedly discharged the relevant
overdraft facility had been taken out by the parties a mere two months after
the purchase of the Minton Rise property. However, the short lapse of time per
se is insufficient to show the necessary prior agreement between the parties
that the ultimate source of funding of the $99,000 was intended from the
outset, at the time of the acquisition of the property, to be from both parties
jointly, instead of from Yeo alone.
121 Accordingly, as the appellant should be deemed to have contributed
half the housing loan, and Yeo should be deemed to have contributed
the other half of the housing loan as well as the amount paid out from his
overdraft account, the respective contributions of the parties are unequal. The
presumption of resulting trust thus arises on the facts with respect to the
Minton Rise property.
The Jalan Tari Payong property

122 The purchase of the Jalan Tari Payong property ($1,100,000) was paid
by a housing loan of $770,000 jointly obtained by Yeo and the appellant; a
short-term loan of $80,000 obtained by way of a joint letter of undertaking
by Yeo and the appellant to repay the sum from the sale proceeds of
33 Fowlie Road; as well as $250,000 from an overdraft facility belonging to
both Yeo and the appellant and secured on the original 33 Fowlie Road, and
later, on 35 Fowlie Road. These component sums are the relevant “direct
contributions” to the purchase price for the purpose of presuming a resulting
trust; they will be considered ad seriatim.
123 As in the case of the Minton Rise property, Yeo and the appellant should
each be deemed to have contributed half of the housing loan which they had
obtained in joint names towards the purchase price of the Jalan Tari Payong
property; and in the absence of prior agreement to the contrary, subsequent

mortgage repayments should not be a relevant consideration for the purposes
of a resulting trust. No evidence of any such prior agreement was adduced.
124 With respect to the short-term loan of $80,000, since Yeo and the
appellant both assumed liability under the letter of undertaking to repay that
sum, prima facie, they should both be considered to have jointly contributed
that sum towards the purchase price of the Jalan Tari Payong property.
However, from the letter of undertaking, it is clear that the parties intended
the repayment of the $80,000 to be from the sale proceeds of 33 Fowlie Road.
As such, the loan of $80,000 advanced to both Yeo and the appellant may be
regarded as a form of “bridging finance” as envisaged by Wheeler J in Bertei v
Feher ([116] supra), with the sale proceeds of 33 Fowlie Road (which belonged
solely to Yeo) constituting the intended ultimate source of funding for
the $80,000. The letter of undertaking reflects the common intention of Yeo
and the appellant, and this agreement between them should prevail for the
purposes of determining the relevant direct contributions to the purchase
price. Yeo should thus be regarded as the sole contributor of the $80,000
obtained from the short-term loan.
125 The remaining $250,000 was drawn from an overdraft facility belonging
to both Yeo and the appellant, and both parties should each be considered
to have contributed half that sum towards the purchase price of the Jalan
Tari Payong property since both have assumed equal liability for the loan.
Admittedly, the overdraft facility from which the $250,000 was drawn was
secured on the original 33 Fowlie Road and, later, on 35 Fowlie Road,
both of which undisputedly belonged solely to Yeo. However, contrary to the
conclusion arrived at by the learned trial judge (see [15] above), we are of the
view that the liability of a borrower under an overdraft facility is, in no way,
diminished by the existence and ownership of the security provided. It is
trite that failure to make repayment in accordance with the terms of a loan
agreement will entitle the lender to bring an action against the borrower for
the amount due. This action will be in pursuit of a claim in personam and may
be brought irrespective of the existence of any security: see Burgess on Law of
Loans and Borrowing (Struan Scott ed) (Sweet & Maxwell, Looseleaf Ed,
August 2005 release) at para 3.15, p 3017. The options of disregarding the
security and suing the borrower on the loan, or of realising the security and
suing for the balance if it proves insufficient, are open to the lender. Therefore,
since it is the liability also assumed by the borrower that constitutes the reason
for attributing the loan amount to the borrower when determining
contributions to the purchase price of the property, and since that liability
is not diminished by the existence of the additional collateral security, the
ownership of that security should usually be irrelevant in considering the
question of contribution to the purchase price of the property for the purposes
of the presumption of resulting trust.
126 Finally, it should be pointed out that contributions to the cost of repairs
or renovation of a property may be relevant when computing a party’s
contribution to the purchase price of property. In Pearce & Stevens ([31]
supra), it was stated at p 246:
Where the property is repaired or renovated, and its value is thereby
increased, a person who contributes towards the cost of such repairs or
renovations will be entitled to an interest in the land by way of a resulting
trust proportionate to the extent to which the increase was attributable
to their contribution. Improvements made much later than the date of
purchase may give rise to a constructive trust.
Hence, where a property is redeveloped closely after purchase and where
its value is increased by the redevelopment, contributions to the costs of
redevelopment can be relevant in determining the respective proportion of
contributions to the purchase price of the property for the purposes of a
presumption of resulting trust. In the present case, however, the evidence
supporting the appellant’s assertion at trial – that she had contributed her
own money to the redevelopment of the Jalan Tari Payong property – was
contradictory and rather unconvincing. It was undisputed that the appellant
had obtained a revised construction loan in her sole name to complete the
redevelopment of the Jalan Tari Payong property after Yeo’s demise, but,
save for the amounts that were borrowed, no other evidence was adduced to
elucidate the actual proportions of the parties’ contributions. As such, we are
of the view that, in this case, the relevant contributions to consider for the
purposes of the presumption of resulting trust are the contributions towards
the purchase price of the property; the evidence adduced on the parties’
contributions towards the redevelopment costs of the Jalan Tari Payong
property is, without more, insufficient and inconclusive. Having said that, if
it were absolutely necessary for a just resolution of the matter, we may have
directed a fact specific inquiry into this issue as this was not properly explored
during the trial. Such an inquiry might well lead to the appropriate legal
framework giving recognition or credit to the appellant’s revision of the
construction loan in her sole name to complete the redevelopment of the
property.
127 Therefore, the appellant would be deemed to have contributed half of
the housing loan and half of the $250,000 obtained from the joint overdraft
facility with Yeo; and Yeo would be deemed to have contributed the other
half of the housing loan and the $250,000 obtained by overdraft as well as the
$80,000 from the short-term loan which was subsequently repaid from the sale
proceeds of 33 Fowlie Road. As the contributions of Yeo and the appellant are
unequal, the presumption of resulting trust also arises with respect to the Jalan
Tari Payong property.
Application of the presumption of advancement

128 As the relationship between the parties concerned is a spousal one,
the presumption of advancement would apply to rebut or displace the
presumption of resulting trust. The respondents had attempted to argue
that the presumption of advancement should not apply with respect to the
Minton Rise property as it was purchased by Yeo and the appellant jointly
eight months before they were married. However, the case of a fiancé-fiancée
relationship is encompassed within the extended application of the
presumption of advancement contemplated by the courts in both Moate ([71]
supra) and Wirth ([71] supra) where the transferor or contributor husband is
engaged to be married to the beneficiary wife and they do not subsequently
break their engagement to marry each other: see discussion at [70]–[71]
above. Indeed, it is also not irrelevant that the Minton Rise property was
in fact the matrimonial home. We find, therefore, that the presumption of
advancement should operate in relation to both the Minton Rise property and
the Jalan Tari Payong property. The issue is: How strong is the presumption of
advancement on the present facts? Does it rebut the initial presumption of a
resulting trust?
Relevance of the second will

129 Yeo had named the appellant the sole beneficiary of all his properties
upon his death in his second will. This will was executed in 1996, before the
purchase of the Properties. Unsurprisingly, the appellant and the respondents
take different positions with regard to the relevance of the second will in
determining the parties’ respective beneficial interests in the Properties.
The appellant had contended that the will was evidence of Yeo’s intention
to benefit the appellant upon his death and, thus, such evidence rebutted
the presumption of resulting trust and reinforced the presumption of
advancement at least in so far as the remainder interest in the Properties
was concerned. In contrast, the respondents’ case was that the will was made
at a time when the purchase of the Properties was not even within Yeo’s
contemplation, and, in the presumptions of resulting trust and advancement,
it was the specific intention of conferring the benefit of particular properties on
the recipient that was relevant rather than a general intention reflected in a will
made several years before the acquisition of the Properties.
130 In considering the relevance of the second will, it is important to consider
the rationale behind its deemed statutory revocation. After all, if the second
will had not been revoked by the subsequent marriage of Yeo to the appellant
(see [6] above), the appellant would, without more, have been the absolute
owner of all of Yeo’s properties, including the Properties.
131 The second will was revoked pursuant to s 13(1) of the Wills Act
(Cap 352, 1996 Rev Ed) (“Wills Act”) which states as follows:
Every will made by a man or woman shall be revoked by his or her
marriage, except a will made in exercise of a power of appointment, when
the real or personal estate thereby appointed would not in default of such
appointment pass to his or her heir, executor or administrator or the
person entitled under the Intestate Succession Act.
As such, on a strict application of the above provision, the appellant’s own
marriage to Yeo constituted the very trigger, by operation of law, for the
revocation of the second will, in which she was named the sole beneficiary.
Ironically, this result appears to defeat the very objective underpinning s 13(1)
of the Wills Act.
132 There appears to be a dearth of local cases pronouncing on the rationale
of s 13(1) of the Wills Act. However, an examination of the authorities on
the English equivalent provision – s 18 of the English Wills Act 1837 (c 26)
(“the English Wills Act”) – confirms that the purpose of such legislation was
to protect the spouse of the testator in the marriage that occurs after the
execution of the will. The provision was originally devised to prevent injustice
to the wife and offspring, of any subsequent marriage, who would otherwise
inherit the testator’s estate by way of intestate succession. Indeed, in
I J Hardingham, M A Neave & H A J Ford, The Law of Wills (The Law Book
Company Limited, 1977), the authors note the rationale of s 18 of the English
Wills Act to be axiomatic (at pp 103–104):
It has been observed that the purpose or rationale of the law as to
revocation of wills by marriage is to let in claims by wives and children, it
being reasonable to suppose that their claims will be properly protected
and adjusted by the law as to intestacy.
They add at p 104, citing F B Adams J in Burton v McGregor [1953] NZLR 487
at 490:
To maintain a will made before marriage may result in injustice to children
or even to the wife herself, and there are, it is said, good reasons why it
should not be done unless a contrary intention is clearly expressed on the
face of the will.
133 In the present case, the appellant had anomalously lost her rights as the
sole beneficiary of Yeo’s second will by virtue of the very legislation that was
enacted to protect her and any children she might have had with Yeo during
their marriage. Instead, she is now reduced to claiming an interest in the
Estate under the intestate succession regime, together with Yeo’s children of a
previous marriage from whom he was estranged in his lifetime (see [5] above).
Further, as an indirect result, the absolute rights in properties that had prima
facie devolved to the appellant by way of survivorship have also become prone
to challenge from the respondents; the respondents would not have had the
locus standi to challenge those rights but for the fact that Yeo’s second will
had been, by a strange quirk of timing, statutorily invalidated. These adverse
consequences to the appellant are plainly contrary to the manifest purport and
intent of s 13(1) of the Wills Act.
134 As such, we are of the view that the existence of Yeo’s second will should
be given an appropriate amount of weight in determining his intention in
relation to the interests in the Properties upon his death. The revocation of
a will by a subsequent marriage takes place by operation of law, and it takes
effect without the testator ever having evidenced any actual intention
to revoke it: see for example, Re Lim Kim Chye, deceased [1936] MLJ 60.
Therefore, Yeo’s unrevoked intention, as reflected by his execution of the
second will, should be viewed as being relevant in our consideration since the
revocation of the will by virtue of s 13(1) of the Wills Act does not, in any way,
indicate any de facto change of intention on Yeo’s part. The fact that Yeo had
intended for the appellant to benefit absolutely from all his assets after his
demise buttresses the appellant’s contention that he had intended for her to be
the absolute owner of the Properties by way of survivorship. To our minds,
the existence of the second will, though legally invalid and unenforceable, adds
considerable strength to the presumption of advancement in respect of the
surviving interest in both jointly-held properties.
Legal advice on joint tenancy

135 The appellant had emphasised that the Properties were held in joint
tenancy by Yeo and herself after advice by their lawyers on the legal effect of
a joint tenancy; it was clear that Yeo had in fact intended for the operation of
the rule of survivorship in respect of these properties. We do note, however,
the respondents’ point that this assertion of legal advice was unsupported
by independent evidence. Nevertheless, in Calverley v Green ([37] supra), the
High Court of Australia suggested that the fact that the parties had agreed
to hold a property on joint tenancy may in itself be of some relevance in
considering the intention of the parties with respect to their beneficial
interests in that property. It was stated at 256:
In conjunction with other facts, the very fact that the plaintiff had become
a joint tenant at the defendant’s direction or, at least, with his consent may
be a fact of some importance in deciding whether the defendant intended
her to have a corresponding beneficial interest.
136 Further, in Cummins ([100] supra), the High Court of Australia
also highlighted that it was unrealistic to suggest that the solicitor for the
purchasers of the property in question did not at any point advise his clients
on the significance of taking title as joint tenants rather than as tenants
in common: see [73] of the decision. Although it appeared that the court’s
remark in Cummins was partly prompted by the fact that the conveyance in
that case was not uneventful, with the contract for the sale and purchase being
settled only after the issue of a notice to complete by the solicitors for the
vendor, we are of the view that, in the modern conveyancing context, it is
nonetheless more likely than not that parties represented legally in property
transactions would be advised on the consequences of those transactions,
including the consequences of joint tenancy where the property is to be
co-owned in that manner. Any omission to inform potential joint tenants of
their legal positions may even result in professional liability on the part of the
lawyer. We are prepared to assume, on this aspect of practice, that solicitors
generally carry out their responsibilities diligently.
137 The fact that Yeo and the appellant were legally represented in the
conveyancing of the Properties is not disputed; it is the appellant’s assertion,
that legal advice on the effect of joint tenancy was rendered, that the
respondents take issue with. As such, on the present facts, we are of the view
that legal representation results in a prima facie inference of informed consent
on the part of the parties to hold the Properties as joint tenants at law. In line
with the discussion at [94] and [95] above, it appears that the parties in the
present case had, in fact, voluntarily intended to hold the Properties in such a
manner and there is a strong case to be made for equity following the law in
this instance; the presumption of advancement with respect to the surviving
interest in both properties is, therefore, relatively strong on the present facts.
In our judgment, the juxtaposition of the factual circumstances in the present
case makes the inference, that Yeo had intended for the appellant to benefit
from the rule of survivorship which is an intrinsic facet of joint tenancy, more
probable than not.
Financial independence of the appellant

138 The trial judge had noted that Yeo did not work and that it was the
appellant, instead, who had worked and earned a living. The respondents, on
their part, had asserted that the appellant was financially independent and did
not expect Yeo to support her; she was “hardly the housewife for whom the
presumption of advancement would operate”. Indeed, it must be recognised
that the presumption of advancement is stronger and more readily inferable
in cases where the beneficiary is financially dependent on the transferor or
contributor. This was the position taken by the Court of Appeal in Low Gim
Siah ([76] supra); Chan Sek Keong CJ, in delivering the judgment of the court,
had stated at [44]:
There is no doubt that many married women in Singapore are financially
independent of their husbands. But there are also many of them who are
not or who choose to be housewives in order to look after their husbands,
their children and their homes. Infant children will always be financially
dependent on their fathers and mothers. In our view, in the case of such
relationships, there is no reason to treat the presumption of advancement
as having lost its robustness or diminished in its vigour, and there is no

reason why it should not be applied to resolve questions of title in the
absence of any evidence indicating otherwise.
139 It must, however, be emphasised and reiterated that financial dependence
is but one of the many factors relevant in determining the strength
of the presumption of advancement in any given case (see the discussion
at [77]–[78] above). This is a factor going towards the nature of the
relationship between the parties. Other factors, including those relevant to
the state of the parties’ relationship, are equally, if not more, important in
the court’s application of the presumption of advancement. Counsel for the
respondents, Mr Michael Khoo SC (“Mr Khoo”), had in fact candidly
conceded at the hearing before us that it was not necessarily the case that the
presumption of advancement would not operate in favour of working wives;
he rightly acknowledged that each case must be taken on its own facts. Thus,
while it is relevant that the appellant was financially independent of Yeo and
the nature of the relationship between the parties was not one of financial
dependence, this is not a determinative factor in applying the presumption of
advancement. The entirety of the factual matrix must be taken into account in
considering the strength of the presumption.
State of the relationship between the parties

140 Finally, we must turn to look at the state of the relationship between Yeo
and the appellant. Generally, and logically, the more loving the relationship
between spouses (or indeed, between a parent and a child), the more inferable
is the intention on the part of the transferor or contributor to confer a benefit
on the recipient, and thus the stronger the presumption of advancement.
141 From the evidence in the present case, it is clear that Yeo was
well disposed towards the appellant, right up to his untimely demise;
their relationship was a loving one. The parties’ architect, Mr Selvanayagam
S Nadarajah, gave evidence at trial that Yeo and the appellant were a devoted
couple. This testimony, it bears emphasis, was not challenged in the court
below. Mr Khoo had forthrightly acknowledged during the hearing that
neither of the respondents was in any position to dispute the close relationship
of Yeo and the appellant since there was no evidence to the contrary; he could
only observe that, as with all loving relationships, there might be stormy
periods. In our opinion, the state of the relationship is not affected by the
various nuances, highs and lows that are part and parcel of any human
relationship. It is the consistent and underlying relation between the parties
that is crucial. Thus, it is the fact that Yeo and the appellant had an undeniably
close and caring relationship, at the time of the acquisition of the Properties,
which is relevant apropos our determination of the strength of the
presumption of advancement.
Rebuttal of the presumption of advancement

142 On an examination of all the circumstances of the present case, it appears
to us that the cumulative facts are such as to give rise to a strong presumption
of advancement. Has sufficiently weighty evidence of a contrary intention
been adduced such that the presumption may be rebutted and a resulting
trust should be imposed? The respondents’ rebuttal of the presumption of
advancement should hence be considered.
Analysis of the evidence adduced by the respondents

143 The respondents have adduced evidence to support three assertions
in order to rebut the presumption of advancement: first, that the joint
acquisition of the Properties was pursuant to a convenient arrangement
whereby Yeo provided the Fowlie Road property as security for the
credit facilities and, together with the younger appellant, obtained a longer
repayment period; second, that the Jalan Tari Payong property was jointly
acquired as an investment project to be redeveloped and sold and was never
intended as a gift to the appellant; and third, that until his demise, Yeo had
retained control of the Properties, only allowing the appellant to take a more
active role to build up her experience.
144 With respect to the first assertion made by the respondents – that the
joint acquisition of the Properties was merely pursuant to a convenient
arrangement – the objective evidence does not suggest that convenience was
the only reason for the parties’ acquisition of the Properties as joint tenants. It
may be the case that Yeo was older and a longer term of loan would have been
granted by the banks if the Properties were purchased in joint names; it might
even have been one of the considerations that the parties had when acquiring
the Properties jointly. However, the respondents have not persuasively shown
that the parties did not intend to hold the Properties beneficially as joint
tenants as well. The evidence may reflect the practical financial advantages
in the parties holding the Properties as joint tenants, but it does not serve to
rebut any inferred or presumed intention on the part of Yeo to confer a benefit
on the appellant – that of the surviving interest in the Properties. Therefore,
in our view, although the presumption of advancement may be rebutted
by establishing that the relevant transfer or contribution was made for the
purpose of convenience (for example, in cases of jointly-held bank accounts:
see Marshal v Crutwell (1875) LR 20 Eq 328 and Low Gim Siah ([76] supra)
at [52]–[53]), this is plainly not the case on the facts of the instant case.
145 The second and third points raised by the respondents appear to be
based on a narrow understanding of the presumption of advancement as
encompassing merely an outright gift to the person benefiting at the time of
the transfer or conveyance. As mentioned above at [105], the presumption
of advancement may operate in respect of part of the interest in property as
well as, for instance, the remainder or surviving interest. The transferor or
contributor may have intended to give only a right of survivorship and no
“present beneficial interest at all” (see Clelland v Clelland [1945] 3 DLR 664
at 666). Indeed, in Commissioner of Stamp Duties v Byrnes [1911] AC 386,
the Privy Council took the view that the mere fact that any rents and profits
generated from the property concerned were returned to the purchaser or
transferor would not conclusively rebut the presumption of advancement.
Accordingly, in the present case, even if the Jalan Tari Payong property was to
be an investment and the sale proceeds thereof were either to be used by both
Yeo and the appellant together or to be divided between them, and even if Yeo
had retained control of the Properties, this did not negate any inference that
Yeo had intended for the appellant to be the absolute owner of the Properties
upon his demise.
146 In our judgment, the evidence adduced by the respondents is clearly
insufficient to rebut the presumption of advancement in the present case.
The circumstances of the case weigh heavily in favour of inferring an intention
on the part of Yeo that the appellant should benefit from the operation of the
rule of survivorship in relation to both the Minton Rise property and the Jalan
Tari Payong property, and the scant evidence adduced by the respondents
falls short of adequately establishing a contrary intention. Therefore, the
presumption of advancement fastens and holds in the present case and there
should not be any resulting trust imposed on the Properties; the appellant’s
absolute ownership of both properties should be upheld.
Conclusion
147 The presumptions of resulting trust and advancement must be applied in
accordance with the modern context; a fact-sensitive approach is necessary
and courts should be both pragmatic and principled in dealing with issues
where these presumptions come into play. The presumptions are judicial
devices for allocating the burden of proof when property disputes arise. They
continue to be relevant and can still be sensibly applied. In circumstances
where there is scant evidence of the objective of a transaction, they can shield
vulnerable individuals. Where a legal joint tenancy is concerned, the initial
inquiry of the court should be whether a presumption of resulting trust arises
in the first place. It is only where the prima facie circumstances of unequal
contributions to the purchase price of the property exist, and there is a lack of
any apparent contrary intention, that the presumption of resulting trust may
operate; otherwise the legal joint tenancy will reflect the beneficial interests
of the parties. Indeed, we should reiterate that where objective evidence of
the considered and voluntary intention of registered legal joint tenants to
hold land as such is adduced and accepted by the court, there is no room to
look beneath the express intentions of the parties as reflected in the legal title;
there is, consequently, no foundation for the application of the presumption
of resulting trust. If it is established that the presumption of resulting trust

applies, it is then appropriate to turn to examine the relationship between
the parties. Where there is a subsisting relationship which is one of equity’s
darlings (for example, husband-wife, parent-child), the presumption of
advancement arises to prima facie displace the presumption of resulting
trust. The next step is then to determine the strength of the presumption
of advancement based on all the facts of the case, and to consider if that
presumption can be rebutted by evidence of an intention on the part of the
transferor or contributor to permanently retain an interest in the property.
148 On the facts of the present case, a strong, indeed one might even
say compelling, presumption of advancement arises and it may properly be
inferred from all the circumstances that Yeo had clearly intended to confer
the benefit of survivorship to the appellant in respect of the Properties. To
our minds, the respondents could not even begin to succeed in rebutting this
presumption. Accordingly, and for the above reasons, we allow the appeal and
affirm the appellant’s absolute ownership of the Properties.
149 The appellant is entitled to the costs of proceedings below, as well as the
costs of this appeal, with the usual consequential orders.
Reported by Douglas Chi Qiyuan.

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108 SINGAPORE LAW REPORTS [2008] 2 SLR

Lau Siew Kim

Court of Appeal — Civil Appeal No 13 of 2007

Family Law — Advancement — Presumption — Presumption of advancement

inference was to be accommodated within the framework of the presumption of

If legislation were amended to mandatorily require parties to specify the

Murless v Franklin (1818) 1 Swans 13; 36 ER 278 (refd)

Supreme Court of Judicature Act 1875 (c 77) (UK)

30 November 2007 Judgment reserved.

(6) Presumption of advancement

The Minton Rise property

The Jalan Tari Payong property

The trial judge’s decision

evidence to support the same”; it was to be treated as an evidential instrument

The parties’ contentions

The appellant’s case

The respondents’ case

Equitable principles and doctrines

Historical background of equity

26 Today, paradoxically, the creativity of equity has become progressively

were formulated to provide for circumstances prevalent and putatively

Presumption of resulting trust

equitable response to those facts, proved or presumed: see Robert Chambers,

Indeed, it is also important to bear in mind the illuminating remarks made by

turn to consider the appropriate application of the presumption of resulting

Presumption of fact or law?

45 As mentioned above at [37], the presumption of resulting trust stems

Abolishing the presumption of resulting trust?

No doubt in earlier centuries, the practices and modes of thought of the

50 These concerns have also recently found expression in an article by

A more moderate approach

[T]he presumption must, beyond all question, be of very different weight

presumption. It is therefore apparent that the presumption of advancement

the marriage raised a presumption of advancement involves almost a

advocating for such a change, academics have acknowledged that it is arguable

[T]he amount of evidence required to rebut the presumption would

78 The overall aim of the presumption of advancement is to discern

Relevance of the Women’s Charter

81 Therefore, the “community of property” approach to the property rights

Reform Commission of Western Australia (“LRCWA”) had astutely observed

if this evidence is accepted by the court, then the presumption of resulting

The case of joint tenancies between spouses: Interplay between the

99 These observations by Lord Upjohn were subsequently considered by

of the contributing spouse(s) for the operation of the rule of survivorship.

judges to correctly interpret his comments as an inference that in such

It is clear to us that the rejection of the presumption of advancement in

that the rule of survivorship is intended to apply. This may be reinforced, if

The present appeal

Whether the presumption of resulting trust arises on the facts

Time at which respective contributions of the parties should be determined

Nature of contributions which give rise to the presumption of resulting trust

contribution as a relevant consideration for the presumption of resulting trust

The Minton Rise property

subsequently discharged by another loan jointly obtained from Standard

The Jalan Tari Payong property

property; and in the absence of prior agreement to the contrary, subsequent

Application of the presumption of advancement

Relevance of the second will

Legal advice on joint tenancy