Vancouver Estate Lawyer – Gratuitous Transfer Is Gift

vancouver estate lawyer

Trevor Todd and Jackson Todd have over sixty years combined experience in handling contested estates , including gifts versus resulting trust claims.

Franco v Franco Estate 2023 BCSC 1015 held that the gratuitous transfer from a father to one of three children was a valid gift having found that the deceased clearly intended the transfer of properties and a joint bank account to be a gift.

The presumption of resulting trust was rebutted.

Documentary and affidavit evidence established that the deceased intended to gift to his daughter rights of survivorship in real property and bank accounts owned by him at the time he made those transfers. That evidence includes the transfer documents, the Deed of Gift and bank account documents, as well as the affidavits of independent witnesses.

The Law

In McKendry v. McKendry, 2017 BCCA 48, the Court of Appeal stated the requirements for a legally binding gift:

A gift is a gratuitous transfer made without consideration. Two requirements must be met for an inter vivos gift to be legally binding: the donor must have intended to make a gift and must have delivered the subject matter to the donee. The intention of the donor at the time of the transfer is the governing consideration. In addition, the donor must have done everything necessary, according to the nature of the property, to transfer it to the donee and render the settlement legally binding on him or her: Kooner at 79-80; Pecore at para. 5.

A gift may be delivered in various manners. For example, a donor may choose to transfer property directly to a donee or a trustee, or may retain possession and make a declaration of trust. Once a gift is given, the donor cannot retract it. If it is incomplete, however, the court will not perfect a gift. Accordingly, where the gift rests merely in a promise or unfulfilled intention, the court will not compel an intending donor to follow through with making the gift: Kooner at 79-80; Pecore at para. 56.

The standard for proving a gift is the usual civil standard of a balance of probabilities: Singh Estate v. Shandil, 2007 BCCA 303 at paras. 24-27.

Where, as in this case, a parent makes a gratuitous transfer to an independent adult child, the presumption of resulting trust arises and the transferee must prove on a balance of probabilities that the transferor intended the transfer as a gift: Sandwell v. Sayers, 2023 BCCA 147 at paras. 39-41, citing Pecore v. Pecore, 2007 SCC 17 at paras. 24-26, 44.

In Newhouse v. Garland, 2022 BCCA 276 at paras. 54-56, the Court of Appeal clarified that the presumption is engaged only where there is insufficient evidence to displace it.
That is, if the transferee leads evidence showing that it is more likely than not that the transferor intended the transfer to be a gift, the presumption does not apply: Pecore at para. 59.

If available, the most compelling evidence is direct evidence of the transferor’s intention at the time of transfer. Circumstantial evidence from that time is also important. While post-transfer conduct is also relevant, it should be treated with caution because of the danger that after-the-fact evidence may be self-serving or may reflect a change in intention: Pecore at para. 59.

Vancouver Estate Lawyer-Presumption of Undue Influence Applied

Trevor Todd and Jackson Todd have over 60 years combined legal experience in handling estate disputes, including undee influence.

Re Campbell estate 2022 BCSC 2184 set aside a transfer in favour of one child over others on the basis of both undue influence and resulting trust.

The defendants knew that the deceased was frail and vulnerable and were clearly in a position of dominance over her.


The law relating to the presumption of undue influence was described by Madam Justice Wilson in Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 [Geffen]. At para. 23 she wrote that:

The equitable doctrine of undue influence was developed, as was pointed out by Lindley L.J. in Allcard v. Skinner (1887), 36 Ch. D. 145, not to save people from the consequences of their own folly but to save them from being victimized by other people (at pp. 182-83). In the context of gifts and other transactions, equity will intervene and set aside such arrangements if procured by undue influence.

[215] Undue influence will be presumed in certain relationships, such as doctor and patient, solicitor and client, and parent and child: Geffen at para. 28. The categories of relationships in which undue influence will be presumed are not fixed. Each case must be considered on its own facts to determine if a “special” relationship exists to support the presumption.

[216] At paras. 42–45, Wilson J. set out what must be established to trigger the presumption of undue influence in these terms:

[42] What then must a plaintiff establish in order to trigger a presumption of undue influence? In my view, the inquiry should begin with an examination of the relationship between the parties. The first question to be addressed in all cases is whether the potential for domination inheres in the nature of the relationship itself. This test embraces those relationships which equity has already recognized as giving rise to the presumption, such as solicitor and client, parent and child, and guardian and ward, as well as other relationships of dependency which defy easy categorization.

[43] Having established the requisite type of relationship to support the presumption, the next phase of the inquiry involves an examination of the nature of the transaction. When dealing with commercial transactions, I believe that the plaintiff should be obliged to show, in addition to the required relationship between the parties, that the contract worked unfairness either in the sense that he or she was unduly disadvantaged by it or that the defendant was unduly benefited by it. From the court’s point of view this added requirement is justified when dealing with commercial transactions because, as already mentioned, a court of equity, even while tempering the harshness of the common law, must accord some degree of deference to the principle of freedom of contract and the inviolability of bargains. Moreover, it can be assumed in the vast majority of commercial transactions that parties act in pursuance of their own self-interest. The mere fact, therefore, that the plaintiff seems to be giving more than he is getting is insufficient to trigger the presumption.

[44] By way of contrast, in situations where consideration is not an issue, e.g., gifts and bequests, it seems to me quite inappropriate to put a plaintiff to the proof of undue disadvantage or benefit in the result. In these situations the concern of the court is that such acts of beneficence not be tainted. It is enough, therefore, to establish the presence of a dominant relationship.

[45] Once the plaintiff has established that the circumstances are such as to trigger the application of the presumption, i.e., that apart from the details of the particular impugned transaction the nature of the relationship between the plaintiff and defendant was such that the potential for influence existed, the onus moves to the defendant to rebut it. As Lord Evershed M.R. stated in Zamet v. Hyman, supra, at p. 938, the plaintiff must be shown to have entered into the transaction as a result of his own “full, free and informed thought”. Substantively, this may entail a showing that no actual influence was deployed in the particular transaction, that the plaintiff had independent advice, and so on. Additionally, I agree with those authors who suggest that the magnitude of the disadvantage or benefit is cogent evidence going to the issue of whether influence was exercised.

[Emphasis added.]

[217] McMaster Estate v. McMaster, 2021 BCSC 1100 provides a recent illustration of the application of these principles in this court. In that case, a mother had purchased a home and registered it in joint title with one of her sons. While the deceased’s will provided for her estate to be split evenly between her children, the transfer had already taken nearly all of the deceased’s assets out of her estate. The estate alleged that the son who owned the house with the mother held it pursuant to a resulting trust or as a result of undue influence. In this context, Justice MacDonald summarized the applicable legal principles as follows:

[47] Undue influence is an equitable doctrine to prevent individuals from being taken advantage of by others. It addresses abuses of trust, confidence, and power spanning a range of transactions, including gifts, bequests, and commercial dealings. Transactions induced by undue influence may be set aside.

[48] Vulnerability and dependency are the hallmarks of undue influence.

[49] In order to trigger a presumption of undue influence, the first question to address is whether the potential for domination inheres in the nature of the relationship. The second phase of the inquiry involves an examination of the nature of the transaction: Geffen v. Goodman Estate, [1991] 2 S.C.R. 353 at paras. 40-44.

[50] A relationship of dependency involving a potential for domination may arise among family members: Geffen. A gratuitous transfer from a parent to an adult child does not automatically create a presumption of undue influence. In Wood v. Porter, 2015 BCSC 2354, this Court found a relationship of dependency and domination did not exist between an independent, active, and competent mother and her son. To establish the presumption of undue influence, the plaintiff must establish the existence of a relationship of potential dominance between the parent and the adult child: Modonese at para. 111.

[51] The second phase of the inquiry involves an examination of the nature of the transaction.

[52] To rebut the presumption of undue influence, the defendant must establish that the transferor entered into the transaction of her own “full, free and informed thought”: Geffen at para. 45.

[53] The following factors may be considered when scrutinizing the transaction to determine if Doreen entered into the transaction of her own “full, free and informed thought”: (i) the lack of actual influence or opportunity to influence her; (ii) whether she received or had opportunity to obtain independent legal advice; (iii) her ability to resist any such influence; (iv) whether she knew and appreciated what she was doing; (v) whether there was undue delay in confirmation by Doreen; and (vi) the magnitude of the benefit or disadvantage: Cowper-Smith v. Morgan, 2016 BCCA 200 at para. 50, rev’d on other grounds, 2017 SCC 61; Stewart v. McLean, 2010 BCSC 64 at para. 97.

[Emphasis added.]

[218] Applying those principles to the present case, I find that the potential for dominance clearly existed in Ivan’s relationship with Mrs. Campbell. Mrs. Campbell was experiencing cognitive decline, she was vulnerable, and she was increasingly dependent on others for activities of daily living, including Ivan. She was engaging in uncharacteristically risky financial behaviour. Ivan had informed himself of the details of Mrs. Campbell’s finances, and attended the meetings with her at the CIBC and RBC. Ivan was in a dominant position in his relationship with Mrs. Campbell.

BC Contested Estates Lawyers- Gifts vs. Resulting Trusts

Contested Estate

Trevor Todd and Jackson Todd have handled contested estate matters such as joint accounts, joint ownership , gifts vs trust that all deal with the principles of resulting trusts.

Resulting trusts most commonly result from a gratuitous transfer of funds or an asset from one party to another.

 The Presumption of Resulting Trust

The presumption of resulting trust is a rebuttable presumption of law that applies to most gratuitous transfers: Pecore v. Pecore, 2007 SCC 17 at para. 24. Equity presumes bargains, not gifts.

Thus, it is presumed that a transferor intended to convey only legal title to a transferee who did not provide consideration and that the transferee holds the beneficial interest in the property in a “resulting trust” in favour of the transferor. The transferee must therefore return the property to the transferor upon request: Pecore at paras. 20 and 24.

The party who obtained the benefit of the transfer must rebut this presumption.

Typically, the transferee must prove on a balance of probabilities that the transferor intended a gift at the time of the transfer, or that there was evidence of the transferor’s contrary intention: Pecore at paras. 24, 25, 43.

Evidence of Intention

In Weaver v. Weaver Estate, 2019 BCSC 132, the court stated:

[62]      If the evidence establishes, on a balance of probabilities, that the transferor’s actual intention was to gift the property, then the presumption has been rebutted. It is the intention of the donor at the time of the transfer that is the governing consideration. To rebut the presumption of resulting trust, the donee must show not only that a gift was intended, but that the donor has done everything necessary to transfer the property to the donee and render the transfer legally binding: McKendry v. McKendry, 2017 BCCA 48 [McKendry] at para. 31.

In Fuller v. Harper, 2010 BCCA 421, the Court of Appeal confirmed that the court should only rely on the presumption of resulting trust where there is insufficient evidence to establish the transferor’s actual intent at the time of the transfer:

[47]      The effect of the presumption only becomes evident after all the evidence, both direct and circumstantial, on the surrounding circumstances in which the transfer was made, has been weighed. Only if the trial judge is unable to reach a conclusion about the transferor’s actual intention at the time of the transfer, will the presumption be applied to tip the scales in favour of the transferor or his estate: [citations omitted]…

Regarding evidence of after-the-fact conduct which may prove the original intention of the transferor, Justice Rothstein stated the following in Nishi v. Rascal Trucking Ltd., 2013 SCC 33:

[41]      Evidence that arises subsequent to a gratuitous transfer can be admissible to show the true intention of the transferor (Pecore, at para. 59). However, it is the intention of the transferor at the time of the transfer that is determinative. The difficulty with subsequent evidence is that it may well be self-serving or the product of a change in intention on the part of the transferor (Pecore, at para. 59).

Schouten Estate v. Swagerman-Schouten, 2014 BCSC 2320, where the court described the care that must be taken when considering evidence of the deceased’s intention:

[6]           Care must be taken to guard against after the fact evidence that may be self-serving (Pecore at para. 59; Fuller at para. 49; Chung at para. 51; Anderson at para. 164). The credibility of a witness should be gauged by its harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (Farnya v. Chorny, [1952], 2 D.L.R. 354 at 357 (B.C.C.A.), Aujla at para. 36). Care must also be taken not to treat any single type of evidence as determinative but to weigh all of the evidence (Pecore at paras. 55, 68-69). D. Smith J.A. for the court in Fuller at para. 49 put it in a nutshell: “In short, the court must consider if the transferor had any rational purpose for the transfer other than a gift”.

In Bergen v. Bergen, 2013 BCCA 492, the Court focused on the assessment of the presumption when dealing with a joint bank account. Turning to Pecore, the Court in Bergen stated:

[7]        It is the third major holding in Pecore, however, with which we are concerned in the case at bar.  Under the heading “How Should Courts Treat Survivorship in the Context of a Joint Account?”, Rothstein J. considered the operation of the presumption of resulting trust in the context of joint bank accounts.  He began as follows:

In cases where the transferor’s proven intention in opening the joint account was to gift withdrawal rights to the transferee during his or her lifetime (regardless of whether or not the transferee chose to exercise that right) and also to gift the balance of the account to the transferee alone on his or her death through survivorship, courts have had no difficulty finding that the presumption of a resulting trust has been rebutted and the transferee alone is entitled to the balance of the account on the transferor’s death.

In certain cases, however, courts have found that the transferor gratuitously placed his or her assets into a joint account with the transferee with the intention of retaining exclusive control of the account until his or her death, at which time the transferee alone would take the balance through survivorship. …

There may be a number of reasons why an individual would gratuitously transfer assets into a joint account having this intention. A typical reason is that the transferor wishes to have the assistance of the transferee with the management of his or her financial affairs, often because the transferor is ageing or disabled. At the same time, the transferor may wish to avoid probate fees and/or make after-death disposition to the transferee less cumbersome and time consuming.  [At paras. 45-7.]

[      Proof of intention was considered in Creyke v. Creyke, 2016 BCCA 499:

[53]      The actual intention of the grantor is determined on the whole of the evidence. The presumption of resulting trust is simply a legal assumption the court will make if sufficient evidence on the point is not adduced.  In many cases, persuasive and reliable evidence of the grantor’s actual intention may be presented by the parties.  The presumption of resulting trust will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities: Pecore at paras. 22-23, 44.

[18]       In Franco v. Franco Estate, 2023 BCSC 1015, the court confirmed at para. 42 that “if the transferee leads evidence showing that it is more likely than not that the transferor intended the transfer to be a gift, the presumption does not apply.”

In Fuller v. Harper, 2010 BCCA 421, the Court of Appeal overturned the trial judge’s decision to grant a declaration of trust. At paras. 69–70, the Court of Appeal explained that the legal error related to the application of the presumption of resulting trust, and held that if the trial judge had considered all the direct and circumstantial evidence of actual intent at the time of transfer, the burden of rebutting the presumption would have been met.

Kolic v. Kolic, 2019 BCSC 1463. Justice Punnett provided a helpful summary of the cases dealing with joint accounts and resulting trusts. The plaintiff summarized those principles as follows:

  1. a)The burden of proof is on the adult child to establish that the jointly held funds were a gift (para. 84, citing Unger v. Unger Estate, 2017 BCSC 1946);
  2. b)It is the testator’s intent at the time of the transfer that determines whether the right of survivorship applies, or whether a resulting trust arises for the benefit of the estate (para. 85, citing Williams v. Williams Estate, 2018 BCSC 711);
  3. c)Bank documents indicating a right of survivorship are not necessarily sufficient to rebut the presumption of resulting trust, even where the documents were explained by the bank representatives (paras. 86–88, citing Stade Estate (Re), 2017 BCSC 2354; Madsen Estate v. Saylor, 2007 SCC 18; Kyle Estate v. Kyle, 2017 BCCA 329; Shkuratoff v. Shkuratoff, 2007 BCSC 1061); and
  4. d)The presence of the giftee when the transfer is made may be a factor favouring upholding the presumption of resulting trust (para. 89, citing Modonese v. Delac Estate, 2011 BCSC 82).

Summary of Resulting Trusts 


In summary, where a gratuitous transfer is challenged, the presumption of resulting trust arises and it falls to the surviving transferee to prove that the transferor intended to gift the asset at their death. Otherwise, the asset will be treated as part of the transferor’s estate to be distributed according to their will: Pecore at para. 53.