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

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

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

Ryan Fights For the Warhol of Farrah Fawcett (worth maybe 12 million)

Ryan O’Neal testifies about disputed Warhol portrait of Farrah Fawcett Love is never having to say your sorry, and that she gave me the $12 million dollar painting that I talk to each day so I own it and not the claimant University, says Ryan… Read more

The Use of Discretionary Trusts in Estate Planning

1. INTRODUCTION I always fell asleep during my law school trusts class. I could never have imagined then what an important role trusts would come to play in my day-to-day career as a Wills and Estates lawyer. I suspect that there are many other lawyers,… Read more

Rebutting the Presumption of a Resulting Trust

Dhaliwal v Ollek 2012 BCCA 86 discusses rebutting of the presumption of a resulting trust, and upholds that the recipient done bears the onus of proof, on the balance of probabilities, to rebut the presumption of a trust and to attempt to prove a gift…. Read more

Sham Trusts and the Three Certainies

The three certainties: certainty of intention and the issue of sham trusts In order to be valid, trusts must comply with the three certainties at the time of settlement: It is of course trite law that for a valid trust to come into existence, the… Read more

Certainty of Subject Matter In Trusts

One of the three requirements of a valid trust is the “certainty of the subject matter”, There are two elements to certainty of subject matter: First, the property which is subject to the trust must be clear. Second, the nature of the interest due to… Read more

Trustees Must Not Co-Mingle or Misuse Estate Funds For Their Own Purpose

Trustees must not co mingle or misuse estate funds or assets  for their own purposes. It is trite law that trustees are fiduciaries and must not personally use, profit from, or co-mingle estate funds with their own. If a trustee has mixed his/her own funds… Read more

Trust For Care of Deceased’s Cats Held Valid

Deceased’s Cats In Zinn v Bergen 2012 SKQB 214, the deceased left a five page typewritten will dated July 7, 2003 wherein he made several specific bequests, and asked to convert the rest and residue of the estate into cash for the purpose of initially… Read more

The Requirements of a Valid Inter Vivos Transfer to a Trust

The Requirements of a Valid Inter Vivos Transfer to a Trust   The decision Mordo v Nitting 2006 BCSC 1761 is a primary source on many aspects relating to trusts. Morodo was suing to set aside an alter ego trust settled by his mother in… Read more

Claim To Set Aside Alter Ego Trust Dismissed

Alter Ego Trusts Usher v Larabee 2010 BCSC 1608 discusses the general principles of inter vivos gifts and an alter ego trust set up by a mother, that was attacked by two sons in litigation.   The mother’s assets consisted of property in the stock… Read more