Beyond Dependence: Extending the Presumption of Advancement in Aotearoa
by mitchell cole
I Introduction
The presumption of advancement applies to transfers from parent to a minor or financially dependent child. This article proposes that the presumption of advancement’s application be broadened from parent-dependent child relationships, to include parent-child relationships regardless of age or financial independence. This would be more reflective of the cultural diversity found in Aotearoa New Zealand’s society in 2026.[1] Many cultures that are prevalent in Aotearoa New Zealand place more weight on family ownership of property than the presumption’s Western basis.
Part II of this article explains the presumption of advancement, its operation and its rationales. Part III explores how the presumption has operated in Aotearoa New Zealand. Part IV proposes an extension to the presumption, justified through family property values found in prevalent cultures in Aotearoa New Zealand society.
II What is the Presumption of Advancement?
Where a person transfers property to another, the presumption of resulting trust presumes that the transferor did not intend a gift. Instead, the transferee holds the property on resulting trust for the transferor.[2] The effect of this is that transfers are treated, essentially, as loans. However, the presumption of advancement creates a carve-out. In specific relationships, it is presumed that the transferor intended to gift. Thus, no resulting trust arises. Either presumption can be rebutted with evidence of intention at the time of transfer.[3]
The presumption of advancement was shaped by the times in which it was established. It was initially gendered, acknowledging the legal obligation on fathers and husbands to take care of their children and wives.[4] However, this original rationale is no longer relevant.
III How does the Presumption of Advancement Operate in Aotearoa New Zealand?
The most contested question regarding the presumption of advancement in Aotearoa New Zealand concerns the application of the presumption to adult children. In Nelson v Meier, the presumption was confined strictly to relationships of dependency: "The presumption of advancement applies between parent and child … [where] the child is dependent on the parent."[5] On that formulation, the presumption was inapplicable to an adult daughter who, though in poor health, was not dependent on her mother.[6] However, in Woolf v Kaye, the High Court took a broader view grounded in parental affection.[7] It was held that the presumption should extend to adult children "regardless of whether they are independent or dependent".[8]
The Court of Appeal in Reid v Castleton-Reid adopted a narrower position.[9] The Court found it "difficult to see any rationale for the operation of the presumption of advancement where an adult child is well established in life".[10] Parental obligation to support did not require an elderly father to give the entirety of his assets to his financially independent adult son.[11]
The Court in Liao v Liao adopted a “well established in life” test to mixed effect.[12] The plaintiffs' reliance on their daughter and patterns of informal dealing rather than formal documentation among Taiwanese family members are visible in the facts, yet were not examined through a cultural lens. Liao (an author, unrelated to the case) argues that this is not a rare occurrence.[13] However, the courts have since adopted some (albeit limited) cultural consideration through the use of expert witnesses.[14]
IV When Should the Presumption of Advancement Apply?
A The Purpose of the Presumption of Advancement in a Diverse Contemporary Aotearoa New Zealand Society
In a society as culturally diverse as Aotearoa New Zealand, equity must take cultural considerations into account. Asians now account for 17.3 per cent of the total population.[15] Pacific peoples represent 8.9 per cent of the total population.[16] The four largest immigrant source countries in the last decade are India (151,185), the Philippines (105,457), China (86,624) and Samoa (25,262).[17] This part therefore examines prevalent cultures in Aotearoa New Zealand, and how the presumption can best reflect them.
1 Māori and Pasifika
For Māori, property within family relations is inseparable from whanaungatanga.[18] The Law Commission's 2021 review of succession law noted that testamentary freedom for Māori must be balanced against whanaungatanga and whakapapa obligations.[19] Taonga tuku iho are held by successive generations as kaitiaki for the collective benefit of the kin group rather than by individuals. A holder is "not necessarily an owner... but rather holds a kaitiaki role."[20] When a parent transfers property to a child, that child assumes obligations of kaitiakitanga over a family resource.
Samoan people organise life around the aiga, and fa'alavelave obligations. Resource transfers are customary duty rather than individual choice.[21] Families routinely give beyond their means for social recognition of generosity. A parental transfer to an adult child reflects the aiga's collective stewardship rather than an individual loan.[22]
2 Asia
Indian family life is broadly organised around sevā (सेवा), the duty of intergenerational care and reciprocity between parents and children. Indian immigrants understand family support through this lens of "long tradition," often within multi-generational households.[23] A parental property transfer expresses ongoing parental duty and carries an implicit expectation of future filial support. 42 per cent of Asian Americans financially support older relatives, compared to 19 per cent of white Americans.[24]
Liao identifies a strong long-term orientation in Chinese culture whereby parental transfers implicitly anticipate future filial care.[25] Filial piety (xiao, 孝) persists across Hong Kong, Taiwan, and mainland China.[26] Hong Kong courts have been shown to reason using cultural narratives of the "loving senior" parent and "submissive junior" child, effectively encoding a presumption of advancement.[27]
Filipino communities organise family life around child-centred sacrifice: parents give property as cultural expectation.[28]
B The Best Version of the Presumption of Advancement in Light of its Purpose
1 Extension to adult children regardless of financial independence
The aforementioned non-Western cultures broadly centre around property being passed on through family as an expression of parental obligation. The relational significance of the transfer often exceeds commercial logic. These transfers often only happen once the child is of adult age, and financial independence is not a factor. In this setting, applying the presumption of resulting trust as a default is to impose a particular Western ideal of property and family on communities that do not share it.[29]
The Supreme Court has accepted that the common law must develop in a manner responsive to values that are not Western in origin.[30] The application of presumption of advancement should, therefore, be extended to include all parent-child transfers regardless of age and financial dependence.
2 Circumvention
There is an argument that this change harms the Western proportion of Aotearoa New Zealand’s population, which still makes up the vast majority. However, the presumption can be rebutted with evidence of intent, such as a deed of loan. Parties who genuinely intend a loan still have sufficient options for legal recourse.
In KBM v RM, the mother's consistent recording of advances in a notebook was sufficient to rebut the presumption, even without a formal deed.[31] In Lo v Lo, evidence of the family's collective lifestyle rebutted a characterisation of the mother's financial contribution as a gift.[32]
Best practice is to seek legal advice and keep a clear written record, making it relatively easy for legally sophisticated parties to displace the presumption of advancement. However, the presumption is most valuable for families operating within cultural traditions of informal gift-giving, where intra-family property transfers are based on trust rather than legal formality and are, therefore, rarely documented. These communities are less likely to engage lawyers or execute deeds of gift — they may be entirely unaware of the law. By protecting those least able to produce evidence rebutting a presumption of resulting trust, the presumption of advancement serves its greatest practical purpose while remaining easily avoided by those who choose to document their intentions.
Imposing a presumption of loan on these communities, and then offering documentation-based opt-outs as the remedy to the resulting hardship, requires familiarity with a legal system that was not designed for them.[33] Extending the presumption to adult independent children provides a default that reflects these communities' actual expectations, while leaving full freedom for parties who wish to document a different arrangement.
V Conclusion
In Aotearoa New Zealand, the presumption of advancement applies to parent-child transfers where the child is a minor or is financially dependent on the parent. However, this article has proposed that its application be extended to include all parent-child transfers of property.
Non-Western cultures now make up a significant proportion of the population in Aotearoa New Zealand. In these cultures, there is more emphasis placed on family ownership of property. The Western origin of the rationale for the presumption no longer exists, and an extension would best reflect the cultural norms found in non-Western communities. Applying the presumption of resulting trust to a parent-child transfer is to impose a particular Western ideal of property and family on cultures that do not share it.
The presumption of advancement can be easily circumvented where desired through deeds of loan. However, maintaining written records and establishing deeds is less likely amongst immigrant communities. Therefore, an extension to the presumption protects the ideals of those who need it most.
[1] Immigration New Zealand Statistics — Residence applications accepted (13 April 2026) at 18.
[2] Dyer v Dyer (1788) 2 Cox Eq Cas 92, [1775–1802] All ER Rep 205 at 93; and Pettitt v Pettitt [1969] 2 All ER 385 (HL) at 414–415.
[3] Ruiping Ye "The Presumption of Advancement in New Zealand: A Confused and Inconsistent Existence" (2021) 52 VUWLR 1061 at 1072.
[4] Grey v Grey (1677) 2 Swans 594 (1677) 36 ER 742.
[5] Nelson v Meier [2016] NZHC 787 at [57].
[6] At [58]–[59].
[7] Woolf v Kaye [2018] NZHC 2191, [2019] 3 NZLR 93.
[8] At [173]–[175] and [188].
[9] Reid v Castleton-Reid [2019] NZCA 372.
[10] At [85].
[11] At [85].
[12] Liao v Liao [2024] NZHC 828.
[13] Zhixiong (Leo) Liao "Decoding the puzzle: Chinese culture, familial transfers, and disputes in Western courts" (2022) 36 International Journal of Law, Policy and the Family 1 at 3 and 14–16.
[14] See, for example, Zhang v Li [2017] NZHC 129; and Li v Wu [2019] NZHC 246.
[15] Stats New Zealand "People of Asian ethnicities living in Aotearoa New Zealand" (5 June 2025) <www.stats.govt.nz>.
[16] Stats New Zealand "Pacific Peoples ethnicities in Aotearoa New Zealand" (5 June 2025) <www.stats.govt.nz>.
[17] Immigration New Zealand, above n 1.
[18] Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239 at [134].
[19] Law Commission Review of succession law: rights to a person’s property on death (NZLC R145, 2021) at [2.47] and [3.37].
[20] At [3.13].
[21] Yvonne Iuta "Fa'alavelave: A disturbance or a blessing?" (MA thesis, University of Auckland, 2012) at 47.
[22] At 34.
[23] Karuna Sharma and Candace L Kemp "'One should follow the wind': Individualised filial piety and support exchanges in Indian immigrant families in the United States" (2012) 26 Journal of Aging Studies 129 at 130.
[24] Shui Sum Lau "Filial Piety and U.S. Family Law: How Cultural Values Influence Caregiving, End-of-Life, and Estate Planning Decisions in Asian American Families" (2023) 26 Asian Pacific American Law Journal 123 at 130.
[25] Liao, above n 11, at 2–3.
[26] Alvin Hoi-Chun Hung "Filial Piety across Legal Systems: Analysing the Influence of Traditional Chinese Legal Culture of Property in Hong Kong, Taiwan, and China" (2023) 18 Asian Journal of Comparative Law 137 at 141.
[27] At 170.
[28] A Gozum "The Filipino Family in the Formation of Values in the Light of John Paul II's Familiaris Consortio" (2020) 21 Philosophia: International Journal of Philosophy 561 at 566.
[29] Alysia Blackham "The Presumption of Advancement: A Lingering Shadow in UK Law?" (2015) 21 Trusts & Trustees 786 at 788–789.
[30] Ellis v R, above n 18, at [19].
[31] KBM v RM [2012] NZFC 2070.
[32] Lo v Lo [2020] NZHC 1614.
[33] Ruiping Ye "The Presumption of Advancement in New Zealand: Time to Relegate this Doctrine to the Annals of History" (2023) 54 VUWLR 393 at 420.
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