The Presumption of Advancement In BC May Be Dead

The Presumption of Advancement In BC May Be Dead

HCF v DTF 2017 BCSC 1226, a divorce case, traces the historical roots of the presumption of advancement and finds that it is an outmoded and “dead” legal principle in today’s BC society.  Times have changed because women are no longer economically vulnerable and same… Read more

Rebutting the Presumption of Resulting Trust

Rebutting the Presumption of Resulting Trust

The BC Appeal Court in Winstanley v Winstanley 2017 BCCA 265 ordered a new trial on the basis that the trial Judge erred in his determination as to whether the evidence at trial had rebutted the presumption of a resulting trust that arises when a… Read more

s it a Loan or Gift Within the Family?

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 between… Read more

Parent Money to Children: Gift or Loan?

Parent Money to Children: Gift or Loan?

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 start… Read more

The Various Types of Trusts

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 to… Read more

Misfeasance of Public Officials

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 of… Read more

Joint Tenancy and the Right of Survivorship

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 title… Read more

Gift of House Upheld Trust

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 Death

Gifts 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 deathbed wills, deathbed gifts’ often result… Read more

Value of Contribution

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

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