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Report No. 82

6.4. Near relatives-The English approach as to near relatives.-

We may add that our approach, which favours special provisions for nominations made in favour of certain near relatives, while supported by modern social notions, is not a total innovation. Very early judicial decisions dealing with analogous situations have shown substantially the same approach. In this context, we may refer to one of the leading English cases,1 decided in the 18th century on the subject of resulting trusts. After making the statement that a resulting trust may be rebutted by circumstances in evidence (in the case of a legal estate taken in the name of the another person), the judgment of Eyre C.B. observes:

"The cases go one step further, and prove that the circumstance of one or more of the nominees being a child or children of the purchaser, is to operate by rebutting the resulting trust and it has been determined in so many cases that the nominee being a child shall have such operation as a circumstances of evidence, that we should be disturbing land-marks if we suffered either of these propositions to be called in question, namely, that such circumstance shall rebut the resulting trust, and that it shall do so as a circumstance of evidence."

1. Dyar v. Dyar, (1788) 8 Cox Eq Cas 92 (93, 94) (Eyre C.B.), quoted in Pattitt v. Pattitt, (1969) 3 WLR 966 (999) (HL).

6.5. In a recent judgment of House of Lords,1 Lord Upjohn, after reproducing the passage from the judgment of Eyre C.B quoted above,2 observed as follows:-

"The remarks of Eyre C.B. in relation to a child being a nominee are equally applicable to the case where a wife is the nominee. Though normally referred to as a presumption of advancement, it is no more than a circumstance of evidence which may rebut the presumption of resulting trust, and the learned editors of White and Tudor were careful to remind their readers at p. 763 that 'all resulting trusts which arises simply from equitable presumptions, may be rebutted by parol evidence. '. This doctrine applies equally to personality."

1. Pattitt v. Pattitt, (1969) 3 WLR 966 (999).

2. Dyar v. Dyar, para. 6.4, supra.

Effect of Nomination under Section 39 of the Insurance Act, 1938 Back

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