Loan or Gift?

In family environments it is often very difficult or near impossible for third parties such as a court to easily determine if that parental advancement of funds used to buy their child’s new family home was a loan or a gift.   From the parent’s… Read more

Watch Out For Phony Joint Tenancies

One of the problems with joint tenancy ownership is that while the registered title might reflect joint ownership, the true beneficial owner might be one of the registered owners are in fact another unregistered owner  in trust– as such, watch out for phony joint tenancies…. Read more

Gratuitous Land Transfer Is a Trust

McKendry v McKendry 2015 BCSC 2433 dealt with a very common fact pattern in estate disputes- where a parent puts the property in joint names with one child and excludes the  other children, thus disinheriting them. In  McKendy the transfer was held to be a… Read more

What Is a Gift?

Norman v. Watch Tower Bible and Tract Society of Canada, 2013 BCSC 2099 Discusses a number of legal issues involving the simple question in law of ” what is a gift?”. Case law and blogs such as this often discuss whether a donor made a… Read more

Resulting Trusts May Arise Before Death

Lawrence v Lawrence, affirmed by the New Brunswick C.A 1990 , 113 NBR (2d) 129 discusses how the presumption of resulting trust can apply to transfers made out of the bank accounts jointly held by one party while the other party is still alive. In… Read more

Rebutting Presumptions

The Supreme court of Canada dismissed an appeal of Lorintt v Boda 2014 BCCA 354 finding that when the father transferred his house to himself and his son as joint tenants, the father had donative intent at the time of the transfer, and found that the filial… Read more

Property Transfer Found to Be Trust, Not Gift

Property Transfer Bergen v Bergen 2013 BCCA 492, sets out a very good summary of the law relating to jointly held assets such as houses and bank accounts, and whether the gratuitous transfer of the asset is held as  a resulting trust and  thus an estate asset,… Read more

Equity Protects Unpaid Vendor’s Liens

Unpaid Vendor’s Liens Hall v Hall 2015 BCCA 96 reviews the law of equitable vendor’s liens, which is similar to the law of resulting trusts, in that if you receive a significant benefit or gift, equity intervenes to scrutinize the transaction, based on the presumption… Read more

What Evidence Courts Examine to Determine if a “Free Transfer” Is a Gift or Not

Schouten Estate v Swagerman-Schouten 2014 BCSC 2320 examines the range of evidence and its significance when attempting to determine the intention of the donor when he transferred title to his farm to himself and one of his 6 children as joint tenants in 1995. In the… Read more

Credibility in Gift vs Resulting Trust Actions

Credibility in Gift vs Resulting Trust Actions One of the most common types of estate litigation is the conflicting stories of one party testifying that the asset was gifted to him or her, while others in the family argue resulting trust, and the Judge must… Read more

Resulting Trust Presumption Applies to Real Property

Resulting Trust Presumption   The decision Schouten Estate v Swagerman- Schouten  2014 BCSC 2320 confirmed the case law that the law relating to resulting trust presumption law also apply to real property (land).   There had been some issue in law at one time due… Read more

The Differences Between Joint Bank Account and Joint Property

There are some particular features of a joint bank account that distinguish it from a joint tenancy in real property and these have been discussed by our Court of Appeal (Bergen v. Bergen, 2013 BCCA 492): ( see my blog on Bergen dated August 26.14… Read more

Mental Capacity Required For a Will Is the Same as Inter Vivos Transfer

 Mental Capacity Required For a Will   Brydon v Malamas 2008 BCSC 749 at paragraph 47 confirms that the test for mental capacity for an inter vivos transfer ( while  alive), is the same as the test of testamentary capacity, including the shifting of the… Read more

Wills Variation and Resulting Trust Claims May Be Tried Together

For over 30 years I have pleaded Wills Variation claims together with Resulting Trust claims in the same case, only to be told by various defence counsel that the pleadings cannot be tried together at the same time.   When challenged, no one has ever… Read more

Transferor’s Intention Is Key to “Right of Survivorship”

The Transferor’s Intention when the “gift” in dispute was created is the key indicator as to whether a right of survivorship is valid or not as 2013 BCCA 492 Bergen v. Bergen reviews leading case law confirms. the case involved a dispute between respondents and… Read more