In some situations, the law recognizes a presumption of advancement of gifts effected as a result of the donor transferring assets to certain persons who bear a relationship to him through kinship: e.g. parent and child, husband and wife. In the context of joint tenancies, where the parties are in such relationships, the presumption of advancement also exists: in the case of a child and parent owning property; one would assume that the parent had the intention that if he dies, that property was to go to his child solely as the surviving joint tenant. In this connection, the Court has upheld the applicability of the presumption of advancement commenting: “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fathers and husbands have somehow changed their paternal or marital obligations so radically that the presumption is no longer applicable or should not be applied.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. 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 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” (para 44 in Low Gim Siah v Low Geok Khim [2007] 1 SLR 795).

However, it should be noted that as the cases below illustrate, sometimes the presumption of advancement is challenged or rebutted.

Presumption of Advancement Rebutted

In Low Gim Siah v Low Geok Khim [2007] 1 SLR 795, the deceased and his youngest son jointly owned various bank accounts totalling about $4.5 million. All the moneys came from the deceased. The Court had to decide whether the presumption of advancement should be applied so that the moneys in the bank accounts were prima facie a gift to the son; and if the presumption applied, whether it was rebutted on the facts. The appeal was made by the grandchildren of the deceased, Low Kim Tah, who died intestate. The Court of Appeal however found that the presumption was rebutted. The Court found that the deceased had full and complete dominion over the moneys in the six joint accounts throughout his life and the fact was sufficient to rebut the presumption that the deceased intended for his son to have the moneys in the joint accounts upon his death. His son was not given the opportunity to operate the account and the deceased had kept all the accrued interest and retained the power to close and/or deal with the bank accounts if he wanted to. Even then, he could have closed all the accounts and retaken possession of the moneys in these accounts without the knowledge and consent of his son. The Court distinguished the present case in stark contrast to cases where property, such as stocks or shares or real estate, are purchased in the name of the son or jointly with the son, thereby vesting the title in the son immediately and requiring the consent of the son if the father wishes to regain title over the property. The Court decided that the moneys in the six joint accounts were held by the son on a resulting trust for the Estate of the deceased.

Presumption of Advancement Not Rebutted

In Lau Siew Kim v Yeo Guan Chye Terence, [2008]2 SLR 108, the sons of the deceased sued their stepmother, claiming that certain real properties which she had held jointly with their late father were held on trust for the deceased’s estate on the basis that the deceased provided the purchase moneys. The deceased had died intestate. The High Court held that there was a resulting trust over the properties in the proportions of the financial contributions of the deceased and the stepmother. The existence of a resulting trust overrode the right of survivorship in the joint tenancies of both properties and the Judge held that although the deceased and the stepmother remained joint tenants at law, they were actually tenants in common in equity according to the proportion of their respective financial contributions. The stepmother appealed. The appellant submitted that there was a presumption of advancement in her favour and that this presumption would override any resulting trust. She also claimed that she was in law entitled to the whole Property as a survivor of property held under a joint tenancy.

On appeal, the decision of the High Court was overturned in favour of the appellant who was given absolute ownership of the properties. 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. As the respective contributions of the parties were unequal, the presumption of resulting trust arose with the respect to the Properties. Since the relationship between was a spousal one, the presumption of advancement operated in relation to the Properties. The parties had a close and caring relationship and the deceased’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.

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. Where married spouses who contributed jointly to the purchase of a property hold 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. The evidence adduced by the respondents was insufficient to rebut the presumption of advancement in the present case.

When a Resulting Trust Arises

A landmark Court of Appeal decision expounded these concepts further in Chan Yuen Lan v See Fong Mun [2014] SGCA 36. In this case, the dispute was between two married octogenarians and concerned a bungalow purchased in 1983, for about $1.8 million and now worth $20 million and registered in Mdm Chan’s sole name. The purchase price came from a number of sources. After the purchase, Mdm Chan executed a power of attorney in favour of Mr See and their eldest son, authorising them to manage the house and to sell it for such price as they see fit. In 2011, Mdm Chan revoked the power of attorney fearing that Mr See was trying to sell the house. Mr Se thus sought to seek a declaration that he was the beneficial owner of the house under a resulting trust. Mdm Chan, on the other hand, counterclaimed that the house was a gift to her under a presumption of advancement.

The Court of Appeal affirmed its own decision in Lau Siew Kim that the twin presumptions of resulting trust and advancement shall be retained to address property disputes. However, it agreed with the High Court that ‘there can generally be no justification to resort to presumptions, however much they may reflect the norms, customs and more s of society, if the court is faced with the actual intentions and desires of the transferor’. This is consistent with the Court of Appeal’s recognition in Lau Siew Kim, which was again affirmed in the present case, that a resulting trust may arise independently of any presumption if it could be proven by evidence that the contributor of the purchase price did not intend to benefit the recipient. Similarly, a presumption of resulting trust may be rebutted by actual evidence of gift without relying on a presumption of advancement. Thus, even if the parties advance their cases based on presumptions, it remains necessary to consider if there is any evidence that may adequately reveal their actual intentions.

Focusing on the parties’ respective contributions to the purchase price of the house, the Court of Appeal held that Mdm Chan’s contribution to the purchase price was only $290,000, she held 84.17% of the beneficial interest of a gift, the Court of Appeal found it unlikely and the presumption of advancement was therefore also rebutted.

Planning Considerations when Structuring Ownership or Transfer of Assets:

  • The choices for the holding of assets can involve an individual holding or holdings in two or more persons. Partnership, Corporate and Trust holdings are alternative forms. The legal consequences that follow can be quite different for purposes of asset protection and succession.
  • A trust may be suitable to separate the legal and beneficial ownership of property i.e. where the trustees become the recognized legal owners of property but the beneficial interests of the property are in other persons.
  • The flexibility of a trust may accommodate ownership of assets where there are needs for discretionary or flexible distribution of income or capital from these assets.
  • For avoiding probate on assets, particularly where the assets may be outside Singapore, ownership could be held other than in the individual’s name through a company.
  • The limitation of liability feature in a company or a limited liability partnership may be suitable for holding certain assets or when engaging in business to avoid unnecessary exposure of the personal assets of the individual concerned to creditors.
  • A Power of Attorney can be used where someone else exercises management and control over assets in the situation where the owner is not available to do so.
  • It may be appropriate in some situations that two or more persons own a property as tenants-in-common rather than as joint tenants and vice versa. But where only one of the owners had provided the purchase price of the property, issues could crop up on his passing whether the surviving joint owner was to benefit fully to the property or otherwise to the benefit of others having interest in the deceased owner’s estate. The issues can be complex and may involve the donee invoking the presumption of advancement concept where close relationship ties are  present. Such presumption may, however, not prevail where a resulting trust arises.
  • Not every person has the capacity to own or deal with assets. Check if the person is a minor, bankrupt, or person who is mentally incapacitated.
  • Assets could be illiquid (e.g. real estate) or held in more liquid forms (deposits, public listed shares) and the holding of both forms have to be balanced, depending in the need of ready moneys
  • Transfers of property may involve transactional costs; e.g, Stamp duties, legal costs. The legal formalities relating to a transfer of assets must be complied with to avoid any issue that the gift was incomplete.
  • Transmission of title can arise in death situation where title passes through the probate process without a conveyance and hence no stamp duty is payable.

Conclusion

Understanding assets and property rights is essential in structuring ownership and holdings of assets to facilitate smooth succession and transfer to one’s heirs either in the lifetime or upon death. Lifetime planning is needed to maximize the estate value and achieve the owner’s succession objectives. Assets have varying characteristics that will bring about different considerations in the manner in which it is held, given away, used as security, sold or transferred to someone else. The (“Asset Holding Structures”) diagram illustrates the various ways in which assets could be held.