What are resulting trusts?
In English Law ‘resulting trusts’ are one of the two main categories of informal trusts, the other being that of ‘constructive trusts.’ The circumstances in which property will become subject to a resulting trust were recently examined by the House of Lords inWestdeutsche Landesbank Girozentrale v Islington London Borough Council  AC 669. Lord Browne-Wilkinson identified two circumstances in which a resulting trust would arise:
‘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 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 purchaser 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.’
Distinguishing resulting and constructive trusts
In some cases, the House of Lords seem to have used ‘resulting’ and ‘constructive’ trusts as interchangeable terms, suggesting that it is not necessary to distinguish between them. However, it is submitted that they are fundamentally different, operating on different principles, and that they need to be strictly differentiated.
Constructive trusts are imposed by the court as a consequence of the conduct of the party who becomes a trustee. Resulting trusts are not imposed as a response to the conduct of the trustee, but to give effect to the implied intentions of the owner. Where a transfer of property has occurred and the legal title has been transferred, but the transferor has failed to show an intention to divest himself fully of all his interest in that property, the transferee will not be permitted to receive the property absolutely for his own benefit. Instead, he will hold it on trust for the transferor. The equitable interests is said to ‘result back’ to the transferor, thus ensuring that he retains his interest in the property.
For more information on:
- Rationale of resulting trusts