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[1935] WN 68. A woman transferred her war bonds into the joint names of herself and her four-year-old granddaughter. She collected the dividends until she died. The question then arose who was entitled to the granddaughter's half-share of the bonds. The grandmother was, of course, unable to indicate her intention in transferring the bonds to her granddaughter, but it was patently obvious that she intended to make a gift. Nevertheless, the court held that the granddaughter in fact held her half-share on trust for her grandmother, and the BeneficialInterest went to the grandmother's estate.
Had the relationship between the parties been parent and child, most likely the PresumptionOfAdvancement would have applied, and the grandmother's estate would have had to produce evidence to prove that the bonds were not intended as a gift. As it was, the court held that this presumption did not apply, so the granddaughter would have to produce evidence that the grandmother had intended a gift. Of course there was none, although it must nonetheless have been obvious to all concerned.
This case illustrates very well the difficulty of using presumptions to establish the intentions of the settlor. It is impossible to produce a definitive list of all interpersonal relationships where the presumption of advancement should apply -- if the presumption is extended to grandmother/grandchild relationships, there is no reason why it should not apply between siblings, or from child to parent, or in many other circumstances. It is clearly not correct to say that the presumption of advancement should apply whenever there is a familial relationship between the parties. It might be safe to apply it where there is a familial relationship and one of the parties is a child, but even that is not certain.
Although the decision of the HouseOfLords in WestdeutscheVIslington1996 has come in for a great deal of criticism, most likely Vinogradoff could no longer be decided the same way. Although Westdeutsche was mostly concerned with what used to be called an AutomaticResultingTrust (rather than, as here, a PresumedIntentionResultingTrust), the case does emphasise that wherever there is a trust, there must be a trustee. It is unjust to impose a trusteeship obligation on a person who has no idea that he is participating in a trust.
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