“12. Where one person, A, transfers the legal title of a property that he owns or purchases to another, B, without receipt of any consideration, the effect will depend on his intention. If he intends to transfer the beneficial interest in the property to B, the transaction will take effect as a gift and A will lose all interest in the property. If he intends to retain the beneficial interest for himself, A will take the legal interest but will hold the property in trust for A. 13. Normally there will be evidence of the intention with which a transfer is made. Where there is not, the law applies presumptions. Where there is no close relationship between A and B, there will be a presumption that A does not intend to part with the beneficial interest in the property and B will take the legal title under a resultant trust for A. Where, however, there is a close relationship between A and B, such as father and child, a presumption of advancement will apply. The implication will be that A intended to give the beneficial interest in the property to B and the transaction will take effect accordingly. 14. Some of the older authorities upon which Mr Chaisty relies indicate that the presumption of advancement is not lightly to be displaced by evidence. Chettiar v Chettiar[1962] AC 294 involved a transfer of land from father to son. In giving the advice of the Privy Council, Lord Denning had this to say about the presumption of advancement: "He [the father] had also to get over the presumption of advancement, for whenever a father transfers property to his son, there is a presumption that he intended it as a gift to his son; and if he wishes to rebut that presumption and to say that he took as trustee for him, he must prove the trust clearly and distinctly, by evidence properly admissible for the purpose, and not leave it to be inferred from slight circumstances: see Shephard v Cartwright[1955] AC 431 ." He then dealt with the facts. Lord Denning continued: "In these circumstances it was essential for the father to put forward a convincing explanation why the transfer took the form it did…." 15. In Shephard v Cartwright the issue was whether a father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact displaced the presumption of advancement. Mr Chaisty particularly relies on this passage from the speech of Viscount Simonds at page 445: "My Lords, I do not distinguish between the purchase of shares and the acquisition of shares upon allotment, and I think that the law is clear that on the one hand where a man purchases shares and they are registered in the name of a stranger there is a resulting trust in favour of the purchaser; on the other hand, if they are registered in the name of a child or one to whom the purchaser then stood in loco parentis, there is no such resulting trust but a presumption of advancement. Equally it is clear that the presumption may be rebutted but should not, as Lord Eldon said, give way to slight circumstances: Finch v Finch (1808) 15 Ves 43 . It must then be asked by what evidence can the presumption be rebutted, and it would, I think, be very unfortunate if any doubt were cast (as I think it has been by certain passages in the judgments under review) upon the well-settled law on this subject. It is, I think, correctly stated in substantially the same terms in every textbook that I have consulted and supported by authority extending over a long period of time. I will take, as an example, a passage from Snell's Equity, 24th ed, p153, which is as follows: 'The acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction, are admissible in evidence either for or against the party who did the act or made the declaration…But subsequent declarations are admissible as evidence not only against the party who made them, and not in his favour'." 16. These authorities relied upon by Mr Chaisty have lost much of their force in modern times. Pettitt v Pettitt[1970] AC 777 involved a dispute between husband and wife as to the ownership of the matrimonial home. At page 793, Lord Reid said about the presumption of advancement: "These considerations have largely lost their force under present conditions, and, unless the law has lost its flexibility so that the courts can no longer adapt it to changing conditions the strength of the presumption must have been much diminished. I do not think it would be proper to apply it to the circumstances of the present case." Lord Hodson said at page 811: "Reference has been made to the 'presumption of advancement' in favour of a wife in receipt of a benefit from her husband. In old days when a wife's right to property was limited, the presumption, no doubt, had great importance and today, when there are no living witnesses to a transaction and inferences have to be drawn, there may be no other guide to a decision as to property rights than by resort to the presumption of advancement. I do not think it would often happen that when evidence had been given, the presumption would today have any decisive effect." Lord Upjohn at page 813 said: "But the document may be silent as to the beneficial title. The property may be conveyed into the name of one or other or into the names of both spouses jointly in which case parol evidence is admissible as to the beneficial ownership that was intended by them at the time of acquisition and if, as very frequently happens as between husband and wife, such evidence is not forthcoming, the court may be able to draw an inference as to their intentions from their conduct. If there is no such available evidence then what are called the presumptions come into play. They have been criticised as being out of touch with the realities of today but when properly understood and properly applied to the circumstances of today I remain of opinion that they remain as useful as ever in solving questions of title." At page 814 Lord Upjohn continued: "Though normally referred to as a presumption of advancement, it is no more than a circumstance of evidence which may rebut the presumption of resulting trust, and the learned editors of White and Tudor were careful to remind their readers at p763 that 'all resulting trusts which arise simply from equitable presumptions, may be rebutted by parol evidence…' This doctrine applies equally to personalty. These presumptions or circumstances of evidence are readily rebutted by comparatively slight evidence." Lord Upjohn then gave some examples. A less rigid approach should also be adopted to the admissibility of evidence to rebut the presumption of advancement. 17. In Tribe v Tribe[1996] Ch 107 at page 129, Millett LJ said: "But it does not follow that subsequent conduct is necessarily irrelevant. Where the existence of an equitable interest depends upon a rebuttable presumption or inference of the transferor's intention, evidence may be given of the subsequent conduct in order to rebut the presumption or inference which would otherwise be drawn." 18. In these cases equity searches for the subjective intention of the transferor. It seems to me that it is not satisfactory to apply rigid rules of law to the evidence that is admissible to rebut the presumption of advancement. Plainly, self-serving statements or conduct of a transferor, who may long after the transaction be regretting earlier generosity, carry little or no weight. But words or conduct more proximate to the transaction itself should be given the significance that they naturally bear as part of the overall picture. Where the transferee is an adult, the words or conduct of the transferor will carry more weight if the transferee is aware of them and makes no protest or challenge to them.”
“47. The judgment under appeal is not a good judgment. It is discursive and does not clearly set out and resolve the material issues. It is not satisfactory that this court has had to deduce the judge's conclusions on these issues by a process of analysis of his reasoning. The core issue was, however, whether the considerable evidence demonstrated that, in 1997, George had intended to give away his flat. The evidence left no room for the application of the presumption of advancement. After a two-day trial in which he heard the witnesses, the judge concluded that George had had no such intention.”
“98 The applicable principles seem, therefore, to be these: (i) in the modern age, the presumption of advancement is very weak; (ii) rigid rules of law are not to be applied to the evidence adduced to show the subjective intention of the transferor; (iii) words or conduct proximate to the transaction should be given the significance which they naturally bear as part of the overall picture; (iv) self-serving statements or conduct carry little or no weight, especially when made long after the transaction. Approaching the present case with these principles in mind, the conclusion which I reach is that the presumption of advancement has been rebutted insofar as it relates to the£19,000 deposit which was paid by Mrs. Akinkuolie. It follows from this that a resulting trust arises in Mrs. Akinkuolie's favour to that extent; in other words, in the proportion which£19,000 bears to the£59,000 purchase price, which I calculate as being 32.20%.”
“91. Mr Pickering next submitted that, to the extent that the presumption of advancement extended to children who were not minors, it only applied to children over 18 years old who were still 'financially dependent' on their parents. 92. Again, I do not accept this submission. Although the issue of financial dependence is undoubtedly a factor relevant to the strength of the presumption (Laskar at paragraph 20), the historic rationale for the presumption is based on parental affection as well as parental obligation: see by way of example Grey v Grey (1677) 36 ER 742 (HC Ch) at page 743, where, at the elemental stage of development of the doctrine, the court identified natural affection as a rationale: '…. For the natural consideration of blood and affection is so apparently predominant, that those acts which would imply a trust in a stranger, will not do so in a son; and ergo, the father who would check and control the appearance of nature, ought to provide for himself by some instrument, or some clear proof of a declaration of trust, and not depend upon any implication of law….' See too Sidmouth v Sidmouth (1840) 48 ER 1254 at p1258, Scawin v Scawin (1841) 62 ER 792 and Hepworth v Hepworth (1870) LR 11 Eq 10. 93. Whilst, as clear from Lord Neuberger's obiter remarks in Laskar, the presumption may be weaker (and therefore more readily rebuttable) in the case of an adult child who is financially independent, I reject the submission that it does not exist at all.”
“The strength of the presumption of advancement 94. On the strength of the presumption of advancement between parent and child generally, Mr Pickering went on to submit that it was 'very weak' in the modern age, citing Lavelle v Lavelle[2004] EWCA Civ 223 and Close Invoice Finance v Abaowa[2010] EWHC 1920 at [98]. 95. In Lavelle, having being taken by Mr Chaisty of Counsel to Shephard v Cartwright and Chettiar v Chettiar , Lord Phillips MR at paragraph 15 commented: 'Some of the older authorities upon which Mr Chaisty relies indicate that the presumption of advancement is not lightly to be displaced by evidence', continuing, at paragraph 17: 'These authorities relied upon by Mr Chaisty have lost much of their force in modern times', citing Lords Reid, Hodson, and Upjohn in Pettitt v Pettitt[1970] AC 777 . 96. The case of Pettitt, however, concerned the presumption of advancement in a husband and wife context, and a number of the passages from Pettitt considered by Lord Phillips in Lavelle made express reference to that context: see for example the remarks of Lord Hodson in Pettitt at p.811. In my judgment, the courts should be slow to extrapolate the treatment of the presumption of advancement in a matrimonial property context to the context of property acquisitions or transactions involving parents and their children. Whilst the presumption of advancement in each case may be, as Lord Upjohn opined, 'no more than a circumstance of evidence which may rebut the presumption of resulting trust' (Pettitt at page 814), plainly the husband/wife and parent/child contexts in which the presumption of advancement may arise will often differ in material respects. 97. Moreover, as rightly noted by Mr Moss QC, the case of Shephard v Cartwright was not cited in Pettitt. Mr Moss submitted that Pettit could not be treated as interpreting or qualifying Shephard in any way. He maintained that Shephard still stood as good law and, as a House of Lords decision, took precedence over Lavelle in this respect. Subject to reserving my position on the comments made in Shephard on admissibility of evidence, I accept these submissions. The language of admissibility (rather than weight) employed in Shephard may simply have reflected the jurisprudential landscape at the time of the decision; the passage from Snell's Equity (24th ed) p.153 quoted at page 445 of Shephard, for example, reads rather differently in the current edition. 98. I would add that the views expressed by Lord Phillips MR in Lavelle on the strength of the presumption of advancement in modern times and the manner in which it may be rebutted were in any event ultimately obiter . At paragraph 48 of his judgment in Lavelle (May and Parker LJJ concurring), Lord Phillips MR stated (with emphasis added) that the 'core issue' in the case was 'whether the considerable evidence demonstrated that, in 1997, George had intended to give away his flat', continuing, ' The evidence left no room for the application of the presumption of advancement . After a two-day trial in which he heard the witnesses, the judge concluded that George had had no such intention.' 99. The case of Close Invoice Finance v Abaowa[2010] EWHC 1920 , also relied upon by Mr Pickering on the strength of the presumption, did not take matters much further on this issue. A submission that the presumption of advancement was 'nowadays very weak' was effectively conceded by the Claimant (at [97]). The judge in Close then went on to base himself on Lavelle on the invitation of both counsel.”
“160. With regard to (4) to (8), there was a legal dispute between Counsel as to the extent to which such factors, if proven, were admissible in evidence for the purposes of rebutting the presumption of advancement. On behalf of Kate, Mr Moss QC submitted that, whilst the court could consider '… acts and declarations of the parties before or at the time of the purchase, or so immediately after it as to constitute a part of the transaction…', subsequent declarations and acts were admissible only against the party doing the act or making the declaration: Shephard v Cartwright[1955] AC 431 (HL) per Viscount Simonds at p445: see too Chettiar v Chettiar[1962] AC 294 (PC) . 161. Mr Pickering in turn relied upon a comment of Millett LJ in the case of Tribe v Tribe[1996] Ch 107 at page 129, where Millett LJ said: 'it does not follow that subsequent conduct is necessarily irrelevant. Where the existence of an equitable interest depends upon a rebuttable presumption or inference of the transferor's intention, evidence may be given of the subsequent conduct in order to rebut the presumption or inference which would otherwise be drawn.' 162. The case of Shephard was not cited in Tribe, but was cited in Lavelle. Lord Phillips (in Lavelle at para 18), approved the passage from Tribe, going on to state: 'In these cases equity searches for the subjective intention of the transferor. It seems to me that it is not satisfactory to apply rigid rules of law to the evidence that is admissible to rebut the presumption of advancement. Plainly, self-serving statements or conduct of a transferor, who may long after the transaction be regretting earlier generosity, carry little or no weight. But words or conduct more proximate to the transaction itself should be given the significance that they naturally bear as part of the overall picture. Where the transferee is an adult, the words or conduct of the transferor will carry more weight if the transferee is aware of them and makes no protest or challenge to them.' 163. Naturally I am mindful of the fact that Shephard v Cartwright is a House of Lords authority which has never been overruled and that the comments of Lord Phillips in the Court of Appeal in Lavelle, whilst ultimately obiter (see paragraph 98 above), warrant close consideration. In this case, however, the issue of admissibility is in any event academic. I say this because, even assuming in favour of the Applicants that evidence on points (4) to (8) is admissible and that the Lavelle approach on admissibility is to be preferred, they have still failed to rebut the presumption of advancement, to the extent that I have found it to apply.”
“29. This sort of constructive intention (or any other constructive state of mind), and the difficulties that they raise, are familiar in many branches of the law. Whenever a judge concludes that an individual “intended, or must be taken to have intended,” or “knew, or must be taken to have known,” there is an elision between what the judge can find as a fact (usually by inference) on consideration of the admissible evidence, and what the law may supply (to fill the evidential gap) by way of a presumption. The presumption of a resulting trust is a clear example of a rule by which the law does impute an intention, the rule being based on a very broad generalisation about human motivation, as Lord Diplock noted in Pettitt v Pettitt[1970] AC 777 , 824: “It would, in my view, be an abuse of the legal technique for ascertaining or imputing intention to apply to transactions between the post-war generation of married couples ‘presumptions' which are based upon inferences of fact which an earlier generation of judges drew as to the most likely intentions of earlier generations of spouses belonging to the propertied classes of a different social era.”
“17. It has been said more than once in the English courts that if a parent gives financial assistance to a newly married couple to acquire their matrimonial home, the usual inference is that it was intended as a gift to both of them rather than to one alone: see McHardy and Sons (A Firm) v Warren[1994] 2 FLR 338 , at 340; Midland Bank plc v Cooke[1995] 4 All ER 562 , at 570. It might be doubted whether such an inference could so readily be drawn in other countries where the culture may be different. But this was a Caribbean judge, albeit from a different small Caribbean island, and it is certainly not for us to say that it was an inference which he was not entitled to draw. 18. Furthermore, it was supported by the behaviour of both parties throughout the marriage until it broke down. Not only did they organise their finances entirely jointly, having only a joint bank account into which everything was paid and from which everything was paid. They also undertook joint liability for the repayment of the mortgage loan and interest. This has always been regarded as a significant factor: see Hyett v Stanley[2003] EWCA Civ 942 ,[2004] 1 FLR 394 . Yet the Court of Appeal appear to have attached no weight to it at all.”
“107. These were payments by a mother to her son, or, as Amir would have it, her sons. In those circumstances the presumption of advancement, applicable as between a parent, mother or father, and a child, is engaged and an evidential presumption exists that the monies advanced to Abbas, or to Abbas and Amir, were gifts and were not, therefore, made pursuant to the arrangement contended for by Amir, or set out in the recitals to the Declaration of Trust. 108. The presumption of advancement, as with other equitable presumptions, such as the presumption of resulting trust, reflects equity’s understanding of the everyday operation of human affairs and the core probability that a parent who provides money, or other property, to a child intends that money, or property, to be a gift to the child and not to create either a loan, or a trust. 109. In an attendance note of9 July 2013 , Mr Pittalis records Amir as describing the payments received from Mrs Nazemi as payments ‘helping out her sons’, That description accords, precisely, with the understanding of human affairs which underwrites the presumption of advancement and tends, therefore, to suggest, strongly, in the absence of other evidence, that, in this case, the monies advanced, or provided by Mrs Nazemi were gifted to her children. 110. Such other evidence as there is, other than Amir’s own evidence, to which I will turn later in this judgment, and the Declarations of Trust themselves, is indicative not that monies were provided pursuant to the arrangements described in the recitals to the Declarations of Trust, but that they were contemplated as being advanced by way of loan. 111. Specifically, it appears that, in 1999, Amir, having purchased the Exhibition Road property in 1996, agreed to enter into an ‘all monies’ charge over Exhibition Road, in respect of all monies advanced, or to be advanced, by Mrs Nazemi to Amir and that, in 2000, a similar ‘all monies’ charge, in favour of his mother, was contemplated, by Abbas, in respect of Queensgate. There is no suggestion that the Exhibition Road charge was ever registered and it does not appear that the charge over Queensgate was ever executed. 112. What can, however, be said to be clear is that such monies as were provided by Mrs Nazemi as were not intended to be gifts to her children were intended to be loans and that, reflecting that status, serious contemplation was given to securing such monies as were so advanced against Amir and Abbas’ respective properties. None of that is remotely consistent with the recitals, or with the case advanced to me by Amir.”
“187. Firstly, fundamentally and contrary to the false narrative set out in the recitals to Declarations of Trust, the properties are not and never have been held on the informal trusts alleged in those recitals and in the Declarations of Trust. Not merely has the presumption that Abbas has always been the beneficial owner of the properties, arising from his registered proprietorship of those properties, never been rebutted, but the extrinsic evidence fully supports the view that he has always been the legal and beneficial owner of the properties.”
“I note from my diary that the final physical inspection on the property was carried out by a representative from Amicus Finance at 3.00pm on23 March 2015 . This was during the Iranian Nowruz holiday and the family was staying at the property (Hasan, Farimah, Sam and his brother Amir). The inspector inquired about the occupancy and tenancy terms. Farimah Tariverdi responded that the Property was in fact owned by Hasan Tariverdi and would be used by the entire family during their visits to London. I was informed of this on a phone call later that day by an irate loan broker who had also advised me that Amicus had cancelled the loan as occupation of the property by the family rather than a tenant would reclassify the loan as regulated and make the property more difficult to repossess if the loan were to default.”