Transfer of Property For No Money Set Aside Under S. 60.2 Adult Guardianship Act

A common estates dispute involves the transfer of property from one to another without any monies being paid, and a possible remedy to have the transfer set aside is under S 60.2 of the Adult Guardianship Act of British Columbia.

Such a situation arose in Committee of Broad v Broad 2013 BCSC 1581

The Defendant was the  plaintiff’s older sister .The  Plaintiff exhibited impaired judgment beginning in 1997 and by
2004 was diagnosed as unfit to manage his own finances.

Plaintiff granted the defendant power of attorney in 2002 and the  Defendant purchased a home for the plaintiff in
2006 and they both lived there.

Plaintiff in 2009 transferred title to  the home to  himself and defendant jointly, with a right of survivorship.

The  Plaintiff brought court action for declaration that the transfer was of no effect against him.

Defendant counterclaimed for declaration that plaintiff held her interest in trust for her .

 

The Court held that the action was allowed; counterclaim dismissed.

 

The transfer of the property for no monies was set aside under the provisions of the S 60.2  Adult Guardianship act.

The transfer was without consideration  and the Defendant was well aware that the plaintiff was incapable
of making decisions about his financial affairs.

The  Defendant was in fiduciary relationship with plaintiff and there was no evidence that defendant contributed
any value to property.

The deceased had been found mentally unfit to manage his financial affairs, based on evidence such as

1) Douglas’s impaired judgment and deterioration of his functioning had been noticeable since September [1997]. This led to his suspension from his employment;

2) He lost his temper with his nieces; his violence involved the authorities;

3) Douglas became guarded and suspicious. He thought that his phone was tapped or that he was being watched;

4) He lost track of time. He was often successively slow in performing tasks and neglected eating properly; and

5) He was seriously isolated, lost his friends and girlfriend, who left him in 2000.

 

Section 20 Patients Property Act was repealed and replaced with the almost identical S. 60.2 Adult Guardianship Act[Repealed 2011-5-28.]:

 

S 20-Conveyances

20 Every gift, grant, alienation, conveyance or transfer of property made by a person who is or becomes a patient is deemed to be fraudulent and void as against the committee if

(a) the gift, grant, alienation, conveyance or transfer is not made for full and valuable consideration actually paid or sufficiently secured to the person, or

(b) the donee, grantee, transferee or person to whom the property was alienated or conveyed had notice at the time of the gift, grant alienation, conveyance or transfer of the mental condition of the person.

 

THE ADULT GUARDIANSHIP ACT REPLACED S 20 PPA

Transfer of Property by incapable adult

 

60.2 (1) If an adult transfers an interest in the adult’s property while the adult is incapable, the transfer is voidable against the adult unless

(a) the interest was transferred for full and valuable consideration, and that consideration was actually paid or secured to the adult, or

(b) at the time of the transfer, a reasonable person would not have known that the adult was incapable.

(2) In a proceeding in respect of a transfer described in subsection (1), the onus of proving a matter described in subsection (1) (b) is on the person to whom the interest was transferred.

 

80        Section 20 of the PPA is repealed. The obvious difference between s. 20 and s. 60.2 of the AGA is that under the PPA any transfer made by an incapable person is void and it is voidable under the AGA.

 

81        Counsel for the Public Guardian argues that s. 60.2 codifies the law concerning the common law presumptions of fiduciary duty, resulting trust and undue influence. I agree

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.

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