Is gender bias inherent in the presumption of advancement? asks Sarah Greer
Recently, the Privy Council confirmed that the equitable concept of the presumption of advancement, seen by some as a legal anachronism, and described as a “judicial instrument of the last resort” (McGrath v Wallis [1995] 2 FLR 114, [1995] 3 FCR 661), has continued to survive well into the 21st century.
GIFT OR TRUST?
In Antoni v Antoni [2007] UKPC 10, [2007] All ER (D) 335 (Feb), the Privy Council decided that the presumption of advancement applied in a case where a father had transferred shares in the family business to his children. Dr Antoni’s widow, the children’s stepmother, argued that her husband had intended the children to hold the shares on trust for him. She relied on the evidence of Antoni’s will, which left the whole shareholding of the company to her.
At first instance, although it was raised in submissions, the judge ignored the presumption of advancement entirely. He found for the widow, on the grounds that the children had
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