Joint Tenancy Transfer Between Parent and One Child Set Aside

Turner vTurner 2010 BCSC deals with a common thorny issue in estate litigation.

In 1996 the deceased parent put title to her home into joint tenancy with one of her two children.

The deceased died in 2007 leaving a will that left the sale proceeds of the house equally between both sons.

The house was her only asset, and if the joint tenancy was a “true” joint tenancy, then by right of survivorship, the house would only pass to the surviving joint owner.

The court grappled with the issue that the will ignored the JT transfer that had taken place a decade earlier.

The court held that the surviving joint owner held his property interest in trust for his late mother, and thus the house formed part of her estate, and was shared equally between the sons as per her will.

The court found that the deceased had not received proper legal advice when the JT was created

For example, it was not explained o her that a gift cannot be taken back, while a will can always be changed

Mr. Justice Verhoeven held that James Turner did indeed hold the house on a resulting trust for the estate. The law in British Columbia is that when a parent transfers assets gratuitously to an adult child, there is a presumption that the child holds the assets in trust for the parent and the parent’s estate. This is a presumption only, and may be rebutted if the child can show that the parent intended a gift.

Where the transfer is gratuitous, or made to a fiduciary, the law generally presumes that a resulting trust has been established. This is because equity presumes a bargain and not a gift. Pecore vPecore 2007 1 SCR 795

Where there is a resulting trust, the transfer is effective to convey legal title( ie your name shows as a registered owner), but the equitable, beneficial title remains with the transfer or: Niles v Lakes (1947) SCR 291

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

More Posts - Website - Google Plus