The presumption of advancement: Is it time to relegate this doctrine to the annals of history?

Abstract

While the doctrine of the presumption of advancement and its applicability have been the subject of much judicial and academic criticism, this article reviews judicial approaches from Australasia and Canada and argues that the doctrine is still relevant in contemporary times. While it is evident that Canadian courts are not willing to support the place of the presumption of advancement in relation to gratuitous gifts by parents to adult children, Australasian jurisprudence supports a more expansive view, which is consistent with the basis of the doctrine. The more expansive view is that the natural bond of love and affection flows from a parent to child, irrespective of the age of the child, and this does not change, regardless of social, political, or economic constraints or changes. Therefore, it is argued that the doctrine is still a useful tool in the judicial toolbox for resolving family disputes today. As a result, the author does not support the relegation of this doctrine to the annals of history, because to do so would be to ignore the realities of contemporary economic pressures.