Presumption of Advancement Presumption of advancement occurs where one party transfers property to another and there is a legal presumption that the transfer was intended as an absolute gift. An advancement is defined as “that which is given to a child by a father, or other person standing in loco-parentis, in anticipation of what the child might inherit”, Mozely and Whitely’s Law Dictionary, J.E Penner 12th Edition. Although this definition is limited to transfers between biological fathers or those in loco – parentis and their children, it is of use in conveying the idea of an advancement being an anticipation of inheritance. We must also note at this point that the presumption of advancement will negate a resulting trust. Current law provides that a presumption of advancement is only available in three situations, from biological father to child, from a father in loco- parentis to his child, and from a husband to his wife. In each scenario it must be proven that the transferor had an obligation to provide for the recipient. The main issue of debate in this area is whether a presumption of advancement can exist in a transfer from a wife to her husband, (Mercier v Mercier, 1903), or a mother to her children, (Bennet v Bennet, 1879). Until very recently the law has been based on conservative influences which dictate that a woman has no obligation to provide for her husband or children and thus no presumption could exist. This view was challenged to a certain extent in Re Cameron (1999) and is an issue that will be addressed later in this presentation. Presumption of Advancement in Transfers between Husband and Wife. ... ... middle of paper ... ... actually carried out. An answer to this problem was provided in the case of Tribe v Tribe (1996) CH.107. In this case a father transferred shares in his company to his son as a means of hiding his assets from his landlord. The landlord was attempting to claim for the repair to damages on the property. However the matter was resolved without the need to look into the fathers assets. However, the son attempted to claim the share as his through a presumption of advancement. In this case the courts did consider the intention of illegal conduct, but decided that this was not enough to dirty the hands of the father as the illegality had not actually been carried out. The courts decided that the intent of the father did not amount to the intention to advance the shares to his son and therefore no presumption could be made.
ARB43, Ch.4, Par.9 ?Where evidence indicates that cost will be recovered with an approximately normal profit upon sale in the ordinary course of business, no loss should be recognized...?
Melanson, Glen. “How the Contractualist Account of Preconception Negligence Undermines Prenatal Reproductive Autonomy.” Journal of Medicine and Philosophy 38.4 (Aug. 2013): 420-425. Health Reference Center Academic. Web. 09 Feb. 2014.
Question Presented: Petitioner Giridar C. Sekhar was convicted of extortion under the federal law for potentially exposing an extramarital affair unless the general counsel for the state comptroller recommended that the state pension fund invest in a fund managed by Sekhar’s company. The meaning of the word “property” would be determined by the courts under the federal extortion law. They would also decide whether the General Counsel had recommended the “property” and if it could be subject to extortion by the federal law. The petitioner had argued for a narrow of the meaning or definition of the word “Property”. He wished that it were brought to the meaning of something that is of value and that is transferable.
Though there is no need for either party to use the word trust, the courts must be able to construe some sort of positive intent that the equitable interest was not to reside in the transferee. However Lord Millett later in Twinsectra Ltd denounces the emphasis previously placed on the party’s intent. Twinsectra involved a borrower seeking short term finance for the purchase of land and Lord Millett in this case states that Quistclose trusts are resulting trusts which arise by operation of law. His conclusion is based on the theory that resulting trust emerges when there is a transfer of property in circumstances in which the transferor did not intend to benefit the recipient. Carnworth J, however contends that from Twinsectra it seems that the parties place no real significance to the purpose so even applying Lord Millett’s newly configured resulting trust analysis, there is no real intent on the lenders part to ensure that the recipient does not receive the money at his free disposal. Furthermore, a key aspect of any intent to create a trust always revolves around the funds being held separately and so by devaluing this factor Lord Millett is detracting from traditional trust law principles and in the process is making it much easier to find a Quistclose trust in situations where it was never
Last summer, the Supreme Court ruled against the use of race in the college admissions process in the case of Fisher v. University of Texas. Since then, affirmative action has become a big issue in the media; however, many people still do not even know what affirmative action is. Affirmative action is a policy to prevent discrimination on the basis of “color, religion, sex, or national origin.” Overall, it favors minorities that are often discriminated. It might sound like an excellent policy; however, the use of this policy in the college admissions process is prejudice. In the college admissions process, affirmative action lowers the standards for some races, while raising the standard for other races. For example, an Asian might need a SAT score of 2300 to be considered for admission at a top school such as Yale and a white applicant might need a score of 2100, while an African American or Hispanic only needs a score of 1700. While affirmative action provides equality in the workplace, it has no place in the college admissions process and should, therefore, be abolished and replaced. This type of policy can be repealed completely, replaced with a college admissions process that favors first generation college applicants, or replaced with a policy based on an applicant’s socioeconomic status.
Stimulating characters that evolve with the plot are fundamental in most novels. These characters could range from the Mary Sue protagonist to the chaotically evil antagonist. In A Lost Lady, Niel Herbert is a significant character along this spectrum. Although Willa Cather herself pointed out he is merely a "peephole" and a "subordinate" to the woman she truly cared for, Niel is a central aspect since he carries the story (132: 20). Early in the novel, he is already portrayed as the classic hero as he injures himself trying to alleviate the woodpecker of its pain. A more intense insight, however, is gathered from him as the plot develops and as he matures. Consequently, Niel discredits initial presumptions about him as he presents qualities and ideologies that make him detrimental to Cather's fictional society, which may be viewed as a microcosm of the actual world. Accordingly, through the patriarchal ideals Niel embraced, the unfounded biases he held, and the ulterior motives he possessed, his heroic stature is unmerited.
The principles of constitution of trusts are derived from the case of Milroy v Lord (1862 where turner L.J. stated that the complete constitution of a trust requires the actual transfer of property from the person making the gift to the beneficiary, a transfer of the intended gift to the trustees to be held in trust for the beneficiaries or the self-declaration of a trustee. The principle in this case is that a gift can only be enforced in equity if it satisfies one of the three requirements. Where the trust does not meet any of the three requirements the trust is considered an imperfect on incompletely constitutes trust. If the donor fails to complete all the formalities required by common law, then equity will not assist the intended beneficiary and thus the gift will be imperfect. The equitable maxim applicable is that equity will not complete an imperfect gift.
...Interests of Birth Parents and Adult Adoptees. Willian and Mary Journal of Women and the Law, 11, 461-480.
The United States of America is the first nation in history to successfully declare and obtain independence from colonial rule. Obtaining independence from the British Monarchy resulted in being only half the battle for the new republic. It would take decades before the new nation could proudly say they are “One nation under God.”
Affirmative action is an attempt by the United States to amend a long history of racial discrimination and injustice. Our school textbook defines affirmative action as “a program established that attempts to improve the chances of minority applicants for educational or employment purposes, although they may have the same qualifications, by giving them leverage so that they can attain a level that is equal to caucasian applicants” (Berman 522). There are people that support and oppose this issue. Opponents of affirmative action have many reasons for opposing this issue, one of them being that the battle for equal rights is over, and that this advantage made for people of color discriminates against people that are not of color. The people that defend affirmative action argue this advantage is needed because of how badly discriminated the people of color once were. Because of the discrimination that once was these people claim that they are at a disadvantage, and always have been, therefore equality of opportunity is needed. It is also said that affirmative action is used to encourage diversity and integration. This paper will discuss the history of affirmative action, how it is implemented in society today, and evaluate the arguments that it presents.
Most Americans desire a colorblind society. A society where individuals are judged upon merit, as opposed to the color of their skin. That is the reason Affirmative Action was birthed by Lyndon B. Johnson in 1964. That is also the reason that Proposition 209 was voted for in 1996. These two historical events are driven by the desire of equality.
Terence Etherton (2008) – Constructive trusts: a new model for equity and unjust enrichment. Cambridge Law Journal
"Introduction to Issues in Adoption: Current Controversies." Issues in Adoptions 2004. Gale Opposing Viewpoints In Context. Web. 17 Nov 2011.
The legal issue of constitution of trusts is very important, judicial decisions over the years on cases where trusts were not properly constituted indicates that constitution of trusts could be quite complex and must be very cautiously done by a property owner as a simple factor could make his trust void. An express trust is completely constituted either by effectively transferring property to trustees or by effectively declaring a trust. In case of personal property, the declaration of the trust may be put in writing; however, equity will not perfect an imperfect gift. It is only when the trust is constituted that it is binding on the settlor. The long-standing idea that equity will not perfect an imperfect gift can be traced back to the 19th century cases of Ellison v Ellison and Milroy v Lord , and was further emphasized in the 20th century in the case of Re Fry .
Based on common law and precedent, the English law of contract has been formulated and developed over a number of years with it’s primary purpose to provide a regulated framework within which individuals can contract freely. In order to ensure a contract is enforceable there are certain elements which must be satisfied, one of which is the doctrine of consideration. Lord Denning famously professed; “the doctrine of consideration is too firmly fixed to be overthrown by a side wind” . This is a crucial indication that consideration has long been regarded as the cardinal ‘badge of enforceability’ in the formulation and variation of contracts in English common law.