Van De Keere v. Turner 81 ETR (3d) 175 , Manitoba Court of Appeal is important in that the court clearly recognizes that is is usually inconsistent for a parent who treats his children equally thorughout life, and his will, would have gifted %90 of his assets to just one of five children.
The deceased had five children, applicants J, R, G, I, and defendant D, with whom he had good relationships.
In August 2000, the deceased executed a new will, which divided his property equally to children and named D as executrix .
Between 2003 and 2007, the deceased transferred approximately $408,000 and camper van to D and her husband, B .
Applicants successfully claimed that deceased’s transfers to D and B were subject to resulting trust .
The trial judge held that deceased intended to gift camper to D and B , but the Trial judge held that D did not rebut presumption of resulting trust with respect to the transfer of $408,000.
The trial judge found that gifting D over 90 per cent of his estate was inconsistent with deceased’s behaviour that showed intention to treat children equally
The trial judge found that there was no explanation why deceased would strip himself of almost all of his assets at time when he was still in relatively good health
D appealed but the appeal was dismissed holding that the trial judge did not introduce new test or place additional onus on D in determining whether presumption of resulting trust was rebutted, but rather, looked at evidence from common sense perspective
” The law states that, where a parent makes a gratuitous transfer of assets to an adult child, there is a presumption of a resulting trust, such that the child is presumed not to be the beneficial owner, but rather to hold the assets as a trustee for the parent. This is a rebuttable presumption, so the child claiming that the transfer was a valid gift can rebut it by bringing evidence to support his or her claim. The evidence required to rebut the presumption is evidence of the parent’s intention to make a gift, which must be proved on a balance of probabilities. (See Pecore v. Pecore.2001 SCC 17 (S.C.C.) at paras. 19-44, {2007]J_ S.C.R. 795fS.C.C.Ut paras. 19-44.)
