Gift or resulting trust2

Loan or Gift Within the Family?

ABP v KGW 2017 BCSC 977 provides a template of the criteria a court will examine in determining if a gratuitous  advance of monies or property within a family  from parents to children will be a loan or a gift.   5      The topic of gratuitous transfers… Read more

Intention to Gift: The Legal Requirements

Intention to Gift: The Legal Requirements

A gift requires three elements  to be legally effected, namely an intention to donate, an acceptance of the gift, and delivery of the gift. All three elements must be present for the gift to be complete, and it is then irrevocable. The gift is the… Read more

Parent Money to Children – Gift or Loan?

http://www.courts.gov.bc.ca/jdb-txt/sc/17/03/2017BCSC0319.htm Dheenshaw v Gill 2017 BCSC 319 deals with an increasingly commonly litigation problem- the advancement of large sums of parents money to their children and the subsequent determination whether  the monies were a gift or a loan when matters go ” sideways”. The court will look… Read more

The Various Types of Trusts

Warde v Slater 2017 BCSC 274 contains a discussion about the various types of trusts in deciding who owned the beneficial interest in the shares of a family business. The decision quotes extensively from Waters on Trusts In Canada.   It is helpful to refer… Read more

Misfeasance of Public Officials

It occasionally occurs in estate litigation that a party has complaints about the misfeasance of  public officials, (usually  against the Public Guardian and Trustee), as a result of perceived deliberate  unlawful actions on the part of the public official against the complainant . The tort… Read more

Joint Tenancy and the Right of Survivorship

McKendry v McKendry 2017 BCCA 48 sets out a good analysis of what a joint tenancy is and the right of survivorship associated with it.   The real property in question was the mother of four children’s home in Vancouver. In 2008, she transferred legal… Read more

Gift of House Upheld Trust

Franklin v Cooper 2016 BCCA 447 upheld a decision of the Supreme Court that the presumption of resulting trust applied and that the defendant daughter who received gift of house by her mother in joint tenancy, instead held the house in trust for the estate of their… Read more

Gifts In Contemplation of Marriage

Gifts In Contemplation of Marriage. P.S. v H.R. 2016 BCSC 2071 involves a claim for the return of a gift ( a $17,000  engagement ring) made in contemplation of marriage arising from a whirlwind relationship of three months that abruptly ended due to the plaintiff’s… Read more

Gifts In Contemplation of Death

GIFTS MADE IN CONTEMPLATION OF DEATH Deathbed gifts happen surprisingly often. It is relatively common for people, during their last days, to make sizable gifts to caregivers and loved ones. Frequently the purported gift is at odds with the will of the dying person. Like… Read more

Gift or Loan?

It is often difficult for the court to determine if advancements of funds from one party to another done orally and without witnesses is a gift or loan. Rosas v. Toca 2016 BCSC 1754 dealt with such a situation. The plaintiff won over $4 million in… Read more

Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust  discussed in Mac v Mak 2016 BCSC 1140. [122]     If the presumption of resulting trust arises, it may be rebutted by evidence of the transferor’s intention at the time of transfer to grant beneficial ownership to the recipient of… Read more

Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust was discussed in Mac v Mak 2016 BCSC 1140: [122]     If the presumption of resulting trust arises, it may be rebutted by evidence of the transferor’s intention at the time of transfer to grant beneficial ownership to the recipient… Read more

Value of Contribution

The Value of Contribution of a parties to the acquisition or improvement of  an asset does not have to be in money and can take  various individual forms as was discussed in Mac v Mak 2016 BCSC 1140. The Courts have to scrutinize the relationship… Read more

Statutory Presumption of Indefeasible title

British Columbia with its Torrens land title system as a statutory Presumption of Indefeasible Title that can be rebutted by  a resulting trust .   The following extract is taken from Mac v Mak 2016 BCSC 1140:   [107]     The starting point is the presumption… Read more

Evidence of Donor’s Intention After Gratuitous Transfer Admissable

Evidence of a donor’s intention after a gratuitous transfer as to whether a gift or a trust was intended  may be admissable if relevant as per   Wong v Chong 2016 BCSC 953 Evidence Subsequent to the Transfer [56] The traditional rule is that evidence… Read more