Fowkes v Pascoe (1875) LR 10 Ch App 343 (CA)

Facts

• Mrs. Fowkes, an elderly woman, transferred a significant sum of money into the name of her nephew, Mr. Pascoe.
• Upon her death, her executors sought to recover the funds, arguing the transfer was not a gift but held on trust for her estate.
• Mr. Pascoe claimed the transfer was a gift, relying on the presumption of advancement.
• The lower court held in favour of Mr. Pascoe, affirming the presumption of advancement.
• The executors appealed, contesting the application of the presumption and seeking to introduce extrinsic evidence to rebut it.

Issues

1. Whether the presumption of advancement applied to a transfer from Mrs. Fowkes to her nephew, Mr. Pascoe.
2. Whether extrinsic evidence could be admitted to rebut the presumption of advancement.
3. Whether, on the facts, the transfer was intended as a gift or was subject to a trust for the estate.

Decision

• The Court of Appeal found that the relationship between Mrs. Fowkes and Mr. Pascoe did not give rise to an automatic presumption of advancement.
• The court held the presumption is not absolute and is weaker outside immediate family relationships.
• The court ruled that extrinsic evidence demonstrating the transferor’s intention is admissible to rebut the presumption.
• Relevant evidence indicated Mrs. Fowkes intended to retain control over the funds, supporting the conclusion that the transfer was not a gift.
• The presumption of advancement was rebutted on the facts; the transfer was not deemed a gift to Mr. Pascoe.

Legal Principles

• The presumption of advancement typically applies to transfers from parents to children and husbands to wives, presuming such transfers are gifts.
• This presumption is rebuttable and weaker when the recipient is not an immediate family member.
• Extrinsic evidence, including statements by the transferor and contextual circumstances, is admissible to prove the true intention behind a transfer.
• The main equitable principle is determining the transferor’s actual intent in property transfer disputes.

Conclusion

The Court of Appeal clarified that the presumption of advancement can be rebutted by admission of relevant extrinsic evidence, particularly where the parties are not in an immediate family relationship, and ruled that the true intention of the transferor determines the character of the transfer.