Author: Trevor Todd

BC Estate Lawyer- Removing a Notice of Dispute

Trevor Todd and Jackson Todd have practiced estate litigation for over sixty years, including the filing and removal of Notices of Dispute.

Pursuant to Rules 25-10(10) and 25-10(11), the test to remove a Notice of Dispute is whether the filing of the notice is in the best interests of the estate: Richardson Estate (Re), 2014 BCSC 2162 at paras. 54, 58.

Rule 25- Application to remove notice of dispute

(10)A person who is interested in an estate in relation to which a notice of dispute has been filed, including, without limitation, an applicant for an estate grant or for the resealing of a foreign grant, may apply on notice to the disputant for an order removing the notice of dispute.

Grounds on which notice of dispute may be removed

(11)On an application under subrule (10), the court may, by order in Form P31, remove a notice of dispute if the court determines that the filing is not in the best interests of the estate.

When notice of dispute ceases to be in effect

(12) A notice of dispute in relation to an estate ceases to be in effect as follows:

(a)subject to paragraph (b), on the date that is one year after the date on which the notice of dispute was filed;

(b)if the notice of dispute has been renewed under subrule (6), at the end of the renewal period;

(c)if the notice of dispute is withdrawn by the disputant under subrule (9);

(d)if the will in relation to which the notice of dispute relates is proved in solemn form;

(e)if the court orders, under subrule (11) or otherwise, that the notice of dispute is removed.

In Stoker v Young 2024 BCSC 637 the objection to the ground raised by the Notice of Dispute pertained directly to the will’s validity and the validity of the estate grant which is sought. In the circumstances, it was necessary for the will to be proven in solemn form.

In Martyniuk Estate, 2016 BCSC 2024, the court held that it was not appropriate to deal with an application to cancel a notice of dispute where more issues were at play than the administration of the estate, and in that case a summary trial was directed on the issue of spousal status.

Further, in the case of Schell Estate (Re), 2019 BCSC 2168, the court held that where there are allegations of lack of testamentary capacity or allegations of undue influence, proof in solemn form is required.

BC Estate Lawyer- Court Costs and Full Indemnity

Trevor Todd and Jackson Tod have practiced contested estates for over sixty combined years, including dealing with contentious costs awards.

Re Chou Estate 2024 BCSC 481 dealt with the issue full indemnity for costs.

Full indemnity costs are generally awarded when one party is so successful at trial for what could be a number of reasons , that the court essentially says that the losing party must pay all the legal fees of the winning party, so that there is full indemnity.

Full indemnity costs are still subject to review to ensure their reasonableness, and an award of full indemnity costs is not a “blank cheque” ensuring recovery of all legal fees and disbursements, as Justice Donegan discussed in Hobbs v. Warner, 2020 BCSC 1180, at para. 12.

In Hobbs v. Warner, Donegan J. determined that it was appropriate on an assessment of full indemnity costs under the PPPA to adopt the approach taken on a review of a lawyer’s bill under the LPA, which requires the registrar to consider the factors set out in s. 71(4) of the LPA.

In reaching this determination, Donegan J. referred to two decisions of the Registrar of the B.C. Court of Appeal, although neither of them involve the assessment of full indemnity costs awarded in estate proceedings: Wanson (Bristol) Development Ltd. v. Sahba, 2019 BCCA 459 [Wanson], and Pallot v. Douglas, 2018 BCCA 315. Decisions of the Court of Appeal Registrar are not binding on the Registrar of the Supreme Court, but they provide helpful guidance.

In Wanson, Registrar Outerbridge contrasted full indemnity costs to special costs, determining that when assessing full indemnity costs, “the question is subjective: examining the bills of the solicitor in this matter, are the charges reasonable in the circumstances?” (para. 14). Justice Gibb-Carsley repeated this phrase in Mah Estate v. Lawrence, 2023 BCSC 1256, at para. 17 [Mah Estate] (an estate case, but one involving indemnity costs under an agreement).

In Mah Estate, Gibb-Carsley J. emphasized that s. 71 of the LPA (or an analysis akin to it) “does not require mathematical precision … instead, the assessor is entitled to employ a global approach to reach a ‘fair fee’ in the circumstances” and that “the costs awarded on a full indemnity basis must ultimately be ‘fair, reasonable and proportionate’” (para. 18).

In their written submissions, both parties agreed that it is appropriate to follow the approach Donegan J. adopted in Hobbs v. Warner, that is, that I should apply the s. 71(4) LPA factors when reviewing the bills on which the respondents’ full indemnity costs are based.

Section 71(4) of the LPA provides:

71 (4) At a review of a lawyer’s bill, the registrar must consider all of the circumstances, including
(a) the complexity, difficulty or novelty of the issues involved,
(b) the skill, specialized knowledge and responsibility required of the lawyer,
(c) the lawyer’s character and standing in the profession,
(d) the amount involved,
(e) the time reasonably spent,
(f) if there has been an agreement that sets a fee rate that is based on an amount per unit of time spent by the lawyer, whether the rate was reasonable,
(g) the importance of the matter to the client whose bill is being reviewed, and
(h) the result obtained.

Vancouver Estate Lawyer- Interim Distributions From the Executor

Trevor Todd and Jackson Todd have handled contested estates including obtaining interim distributions of estate for over sixty comb9ined years.

INTERIM DISTRIBUTIONS IN ESTATES

The court retains a general jurisdiction over the actions of executors/trustees and will normally require that a trustee discharge his or her duties with good faith, and with the standard of care of a reasonable and prudent person of business.

However, where a trustee is granted powers which are to be exercised at his or her sole discretion, the court traditionally would not interfere, unless the trustee had not turned his or her mind to the exercise of the discretion, or they had acted unfairly or in bad faith.

The case of Re: Blow Press Ltd. v U.S.W.A. (1977) O.R. (2d) 516 held that the court had jurisdiction to intervene in the exercise of a discretion by trustees in three situations:

1) a mala fide exercise of such a discretion;
2) a failure to exercise such a discretion; or
3) a deadlock between trustees as to the exercise of such a discretion

It is not uncommon for a will or a trust to be drafted with adjectives giving trustees “absolute,” “uncontrolled,” or “full discretion” to trustees, to use their authority. The courts traditionally have not interfered unless they found mala fides with respect to its exercise of such discretion.

In recent years, however, there are now a number of estate decisions in British Columbia that have allowed for interim distributions in certain circumstances, when the trustee is refusing to distribute under their discretion.

WESA
While WESA does not specifically allow for interim distributions of intestate estates, beneficiaries are no longer required to wait one year from the intestate person’s death to distribute the surplus of the personal estate, as was previously required by section 74 of the Estate Administration Act.

The executor can now distribute all forms of assets after 210 days have passed since the issuance of the representation grant, provided that no proceedings have been commenced, which might affect the distribution of the estate.

A new provision, section 155 (2) WESA prohibits a personal representative from distributing the estate after the 210 day waiting period without a court order if:

1) proceedings of been commenced as to whether a person is a beneficiary or intestate heir;
2) a variation claim has been brought; or
3) other proceedings have been brought, which may affect the distribution him.

INTERIM ESTATE DITRIBUTIONS GRANTED

Trustees generally have the right to exercise their discretion to refuse to make any interim distribution to the beneficiaries until their accounts are approved by the court, by way of a passing of accounts.

In Reznik v Matty 2013 BCSC 1346, an application was brought by three of four residual beneficiaries for an order directing distribution of $15,000 to each of them from the $50,000 held back in the estate. The executor of the estate was the fourth beneficiary, and it had been 13 years since the deceased will maker had passed away. The court held that the power given to the executor under the will to retain a portion of the estate did not displace the duty to distribute the assets.

In assuming general jurisdiction, Reznik was followed in 80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280 (C.A.), which stated at paragraph 282:
“As a superior Court of general jurisdiction, the Supreme Court of Ontario has all of the powers that are necessary to do justice between the parties. Except where provided specifically to the contrary, the Court’s jurisdiction is unlimited and unrestricted in substantive law in civil matters.”
The court reasoned that there was significant delay, and that the estate was of significant value and liquidity that the executors assent to the distribution was compelled, and thus the executor was ordered to pay $10,000 to each of the residual beneficiaries.
In Davis v Burns Estate 2016 BCSC 1982, the court held at paragraph 31 that the following criteria govern whether an interim distribution should be made:
a) the amount of the benefits sought to be distributed as compared to the value of the estate;
b) the claim of the beneficiaries on the testator;
c) the need of the beneficiaries for money; and
d) the consent of the residuary beneficiaries to the proposed distribution

In Davis v Burns, the applicant was 76 years of age and had been the deceased will maker’s common-law spouse for five years and had been friends with he and his wife for many years prior. The former spouse was bequeathed 20% of the assets of the estate (approximately $500,000).
The applicant had no funds and a negative monthly cash inflow. The court found that the other parties to the court action would not be prejudiced by an interim distribution to him, and so the court ordered an advance of $250,000, given his advanced age, and the will’s specific direction that he should “have fun” with the monies after her death.
Nykoryak v Anderson 2017 BCSC 1800 was a wills variation action that followed the criteria set out in Davis v Burns and ordered an interim distribution to each of the personal defendants from the estate funds in the amount of $50,000 each.
Each of the applications provided evidence of their financial need and hardship and the court found that the plaintiff’s security was still more than adequately protected from any award at trial.

In Re Zanrosso Estate 2021 BCSC 2928, the court commented that the new provisions of WESA did not directly address the possibility of court intervention, should an executor/trustee refuse or neglect to distribute the estate.

Counsel in this decision agreed that the court had general jurisdiction to order an interim distribution of estate assets and relied on Reznik v Natty as the authority.
The court found that it had authority to order a personal representative to make an interim distribution of an estate, further to its general jurisdiction and stating that such authority is discretionary and must be exercised in order to do justice between the parties.

The court referred to the criteria set out by the Court of Appeal in Hecht v Hecht 1991 BJ 3475, but stated that it was not an exhaustive list of potential considerations:
The court found that the factors to be considered by the court when deciding whether to exercise its discretion to grant leave to the executors include:

(a) the amount of the benefits sought to be distributed as compared to the value of the estate;
(b) the claim of the beneficiaries on the testator;
(c) the need of beneficiaries for money; and
(d) the consent of the residuary beneficiary to the proposes distribution.”

The court stated that since the legislator had not seen fit to expressly provide for interim distributions from an estate over the objection of the personal representative, that an order should only be made in exceptional circumstances, and with the burden on the applicant to justify the issuance of such an order.

In the case of Re Antonias Estate 2021 BCSC 2388, the court ordered an interim distribution where the applicants were the sole beneficiaries of the residue of the estate, sharing equally and were siblings ranging in age from 76 to 89 years of age, some of them with health issues, and some with concerns that they would pass away before the estate was distributed.
The executor did provide an offer to make an interim distribution, the same that was sought in the court order, but did so on the basis that a release would be signed and returned. The beneficiaries did not comply with the request to sign the release.

The applicants relied on the decision of Reznik v Matty and the quote of Austin v Beddoe (1893) that if an executor has assented to an interim distribution and the assets available to the estate after an interim distribution are sufficient to cover all outstanding liabilities, and had basically made that acknowledgement, it is appropriate to have assets released.
The court ordered the beneficiaries to indemnify the executor from any loss arising from the interim distribution in the event that there was an estate shortfall in assets verus liabilities.

The court ordered an interim distribution of $528,000 and noted that the estate holdback would be approximately $447,000 over and above executor’s fees of % 3.5.

CONCLUSION
Since approximately 2015, the British Columbia courts have been more willing to override the typical absolute discretion of a trustee as to whether or not to make an interim distribution. Historically, the courts would only interfere where there was mala fides on the part of the trustee before they would order a distribution of estate assets.
As the recent cases indicate, if there is evidence of an appropriate set of facts that “justice is done” by ordering an interim distribution, then the courts will seriously consider doing so.

Such evidence should consist of matters such as: inordinate delay, financial need, the advanced age of beneficiaries, holdback protection for the remaining beneficiaries’ interests, sufficient funds to pay future debts, with an indemnity from the beneficiaries in the event of a shortfall.
If such evidence is accepted by the court, then recent cases in British Columbia indicate that the court will give serious consideration to ordering an interim distribution of estate assets, if necessary over the objection of the executor/trustee.

As the court in the Zanrosso decision stated regarding the criteria set out by the Court of appeal in the 1991 Hecht decision – “this is not an exhaustive list.” This statement appears to indicate a greater willingness of the BC courts to order interim distributions of estate assets in appropriate circumstances.

BC Estate Lawyer- Gratuitous Transfers- Gift, Loan or Trust

Trevor Todd and Jackson Todd have practiced law re contested estates for over sixty combined years, including the thorny question of contested gratuitous transfers being either a gift, a loan or a trust.

GRATUITOUS TRANSFERS- LOAN, GIFT OR RESULTING TRUST?

The Gratuitous transfer of assets is a commonplace fact pattern in estate litigation. A small minority of purported gifts are substantiated as to the intention of the donor, which then forces the courts to assess the reliability of the evidence if any as to the intention of the donor why were the transfers made.

The issue of the intentions not being documented is probably most common in family transactions such as the proverbial “Bank of Mom and Dad”.

The most common forms of contentious transfers are made gratuitously through the use of joint tenancy, in both real property and investments such as bank accounts. By reason of the nature of the joint tenancy, upon the death of a joint tenant, the surviving joint tenant automatically becomes the registered owner of the property through the right of survivorship. This happens immediately upon death, and the asset does not form part of the estate of the deceased nor attract probate fees.

Such gratuitous transfers do however attract estate litigation, and the question for the courts to determine is whether the gratuitous transfer was a loan, a gift, or is subject to a resulting trust.

Determinations of whether a gratuitous transfer (usually real property) was a gift or resulting trust are more common in the courts than whether the advancement of funds was a loan or not.

Such cases are all fact determinative; the purpose here is to give an overview of the law relating to each of the three possible outcomes of inter-vivos gratuitous transfers.

WHAT IS A LOAN?

A loan is a specific form of contract. As such, it requires mutual concordance between the parties as to the existence, nature and scope of their respective rights and duties. Like other contracts, it may be evidenced orally, in writing, by conduct or by a combination thereof: Biehl v. Strang, 2011 BCSC 1373, paras. 326-330.

The essential elements of a loan were discussed. in Lee v. 1137434 Alberta Ltd., 2009 BCSC 284:

a principal sum;

i) ii) placed with a borrower;
ii) iii) on agreed terms for the payment of interest; and
iii) iv) liability on the borrower’s part for return of the principal with accrued interest. A loan has also been defined as delivery by one party and receipt by another of money on agreement, express or implied, to repay the money with or without interest:

WHAT IS A GIFT?

Generally speaking, a gift is a voluntary transfer of property to another without consideration. A true and proper gift is always accompanied with delivery of possession, and takes effect immediately.

This is opposed to a loan, which is a form of contract that involves mutual exchanges of obligations, the transfer by way of a gift involves a gratuitous unilateral transaction.
The central element of the gift is the intention of giving to another without any expectation of renumeration. The gift cannot be revoked by the donor or made void by another once the lawful property is vested.
For a gift there must be:
a) an intention to make a gift on the part of the donor, without consideration, or expectation of renumeration;
b) an acceptance of the gift by the donee; and
c) a sufficient act of delivery or transfer of the property to complete the transaction.

To make a valid gift the donor must have done everything that according to the nature of the property, was necessary to be done to transfer the property and make the transfer binding on the donor. McKendry v McKendry 2017 BCCA 48 at para. 31

The court will not perfect an incomplete gift. As a result, where there is a mere promise or unfulfilled intention, the court will not force the intended donor to complete the gift.
The standard for proving a gift is on the balance of probabilities.

WHAT IS A RESULTING TRUST?
A presumption of resulting trust arises where a person makes a voluntary transfer into the name of another person. This is because equity presumes bargains and not gifts.
The intention of the donor at the time of the transfer is key to determining whether the transaction gives rise to a resulting trust.

Generally this can be addressed by answering the following question: did the donor intend to make an immediate absolute gift or did the donor intend the transaction to be merely one of convenience. If it is the latter than the transferor is said to be holding beneficial title of the assets in a resulting trust for the donor

Where there is no consideration for a transfer the law presumes that the transferor intended to create a trust, rather than make a gift.

The legal presumption of resulting trust applies to most gratuitous transfers, but it is a rebuttable presumption of law. The party who obtains the benefit of the transfer must on the balance of probabilities rebut this presumption that the transferor intended to gift at the time of the transfer, or that there was evidence of the transferor’s contrary intention.

The leading case is Pecore v Pecore SCC 17.

The courts are primarily attempting to determine whether the intention of the donor at the time of the gratuitous transfer was to make a gift or has a resulting trust been created.
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: Fuller v Fuller 2010 BCCA 421.

In Franco v. Franco Estate 2023 BCSC 1015, the court confirmed 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 of resulting trust does not apply.

The presumption of advancement rebuts the presumption of resulting trust. Where a person makes a voluntary transfer to their spouse or minor child, it is presumed that the transfer was made with the intent of advancing the property to them, i.e., a gift. The presumption of advancement does not apply when a parent transfers property to an adult independent child. Recent case law indicates that it is increasingly questionable whether the presumption of advancement any longer applies to spouses.

CASES WHERE THE COURT FOUND A LOAN

Grenier v Williams 2020 BCSC 462 is a case where a daughter advanced $23,000 to her father to assist him in purchasing a property. Years later acrimony developed and there was litigation wherein the daughter alleged a loan and the father said it was a gift.
There was no documentation of the financial advancement. The court decided primarily on credibility that there was a loan and not a gift.

Weinhaupt v Paracy 2017 BCSC 1662 is a classic Bank of Mom and Dad situation except for that it was well documented. The apretyns advanced significant funds to a child and spouse in order to assist in the financing of the purchase of a home. The case law can be divided in terms of finding either a loan or a gift depending on the specific findings of fact that are largely based on evidence of the intention of the donors.

The more the transaction is documented the more likely the intention of the parties can be determined.
After reviewing the evidence, the court concluded that the funds were a loan and not a gift. There was contemporaneous documentary evidence of a loan, such as a promissory note, and security for the loan in the form of a mortgage. There was a reasonable expectation or likelihood of repayment once the property was sold.

The court cited Locke v Locke 2000 BCSC 1300 in determining whether it was a loan or a gift. (This passage from Locke was adopted by the Court of Appeal in Kuo v. Chu 2009 BCCA 405):

1. the presumption of advancement no longer applies between adult independent children and their parents;
2. between adult children and their parents, the presumption is a resulting trust when the parents make gratuitous transfers to children;
3. the court must consider all of the evidence in determining whether the parent intended the transfer as a gift or loan;
4. the factors to be considered are:
a) whether there were any contemporaneous documents evidencing a loan;
b) whether the manner for repayment is specified;
c) whether there is security held for the loan;
d) whether there are advances to one child and not to others, or advances of unequal amounts to various children;
e) whether there has been any demand for repayment before the separation of the parties;
f) whether there has been any partial repayment and whether there was any expectation or likelihood of repayment.

GIFT OR RESULTING TRUST?
Anyone who intends to make a gift of real or personal property for little or no consideration must ensure that the intention of the donor is well documented. A deed of gift given under seal, along with the statutory declaration of the intention to gift is probably the best evidence that the courts will rely upon.

If available, the most compelling evidence is direct evidence of the transferor’s intention at the time of transfer, but circumstantial evidence from that time is also important.
Post-transfer conduct is also relevant, but is typically treated in a cautionary manner by the courts as it may be self- serving in the reason for the change in intention.
The courts attempt to determine what the true intention of the transferor was when the gratuitous advancement was made. Only if it is not clear as to the intention do the presumption of advancement or presumption of resulting trust arise.
Where a parent makes a gratuitous transfer to an independent adult child, the presumption of resulting trust arises and the transferee must prove on the balance of probabilities that the transferor intended the transfer as a gift: Pecore v Pecore 2007 SCC 17 at paras 24-26.

CASES WHERE A GIFT WAS FOUND

Franco v Franco 2023 BCSC 1015

In March 2014, the deceased transferred monies into a joint account and real property to his third child. The court found that he did so with the intention of gifting the monies to the third child in order to defeat the claims of the first two children with whom he had an acrimonious relationship. Approximately 8 months later, the deceased executed a deed of gift confirming he had gifted one half of the property as a joint tenant to the third child. Affidavit evidence of independent parties confirmed that it was the intention to gift rights of survivorship in real property and bank accounts owned by him at the time he made the transfers. The court followed the reasoning of McKendry v McKendry 2017 BCCA 48 related to the requirements for a legally binding gift.
Wong v Huang 2012 BCSC 975

The plaintiff was an 86-year-old man who is suing his 12-year-old great nephew for the return of property that the plaintiff transferred to the defendant when he was six years old. The plaintiff was estranged from his children and changed his will in 2000 to provide for the defendant who had recently been born. In 2006 the plaintiff transferred his property into joint tenancy with the infant and wrote several letters to his family, explaining that he had gifted the property to the said child, and that he had changed his will to leave everything to him.
The plaintiff presumably had a change of heart and sued to have the property returned, but the court held that the plaintiff had intended to gift the property to the defendant, and thus the gift was not revocable.

CASES WHERE RESULTING TRUST FOUND
The case law seems to indicate that where there are undocumented gratuitous transfers of assets, it is more likely than not that the court will find a resulting trust unless there is clear evidence of intention to gift.

The presumption of resulting trust provides a guide for the courts in resolving disputes over transfers were evidence as to the transferor’s intent in making the transfer is unavailable or unpersuasive.

Flesjer v Butterfield 2019 BCSC 2332

A frail elderly and terminally ill mother of four children transferred all of her financial investments and real property to one of four children who was the most financially successful.
The court found that the mother did not intend to gift the property to that child. The transfer was done for two reasons – to avoid probate fees and because she trusted him as the most financially adept child to share the assets with his siblings. The court rejected the defendant’s defence that the monies were gratuitously transferred to him for payment of all of the services that he had provided to his mother over the years.

TLG v KMG 2019 BCSC 1236
This case involved a dispute between parents and their daughter with respect to the parents advancing $110,000 to assist the daughter in purchasing a home for her use. The parents won the case due to the law of resulting trusts.

The parents advanced $110,000 to their daughter in 2011 to buy a home. The parents stated that it was an investment for their retirement while their daughter said it was a gift. Neither of the parties sought legal advice or documented the arrangement.

The property was registered as to an undivided 99/100 interest in the name of the daughter and an undivided 1/100 interest in the names of the parents.
The parents stated that they trusted their daughter, but in hindsight their evidence at trial was that it was a mistake.
The parents paid a contractor to renovate the basement suite and paid for the appliances. They used funds from their RRSPs to do so, and thus incurred tax consequences for withdrawing the funds.
The matter came to a head after five years when the parents informed the daughter that they wished to sell the property as they had a large tax bill to pay because of the RRSP withdrawals.

In response, the daughter told her parents “No,” and that “it was her house”.
The court found that the parents had been financially supportive of the daughter for many years and had given her a lengthy education. That history of support and its nature, weighed against the daughter’s assumption that the funds the plaintiffs advanced for the purchase of the property was a gift.
The court found that the daughter had failed to rebut the presumption of resulting trust, so the court ordered the property sold and that the defendant held her interest in the property as trustee for the plaintiffs.

CONCLUSION

Disputes frequently arise in estate litigation as to whether gratuitous transfers were a loan, a gift or a resulting trust. This is often the case in family situations which invariably are not documented nor is independent legal advice obtained.

The law is reasonably well settled as to what is a gift, a loan and a resulting trust and the courts have certain presumptions that they will rely upon when it is not clear as to what the intention of the donor was when the gratuitous transfers were made. The overall conclusion is that donors should obtain legal advice and properly document gratuitous transfers as to their intention.

Contested Estates In BC- Removing an Executor

Trevor Todd and Jackson Todd have over sixty years experience in handling contested estate disputes including removing an executor or trustee

An executor may be removed and replaced under ss. 158–159 of the WESA, and a trustee may be removed and replaced under ss. 30–31 of the Trustee Act. The tests for removal of an executor and of a trustee are substantially the same. The WESA and the Trustee Act do not vary the bases on which the Court has inherent jurisdiction to remove or replace an executor or trustee.

The basis on which the judicial discretion to remove is to be exercised is well-established and has been cited in many cases.

The leading authority continues to be Conroy v. Stokes, 4 D.L.R. 124, 1952 CanLII 227 (B.C.C.A.). In Conroy, the Court considered removal and replacement of a trustee because some of the beneficiaries were dissatisfied with the trustee’s handling of the estate. Citing Letterstedt v. Broers, 9 App. Cas. 371, [1884] UKPC 1, the Court confirmed that the main consideration is the collective welfare of the beneficiaries: Conroy at 126.

A court will not lightly interfere with a testator’s choice of trustee: Nieweler Estate (Re), 2019 BCSC 401 at para. 27 [Nieweler Estate], and not every actual or perceived conflict should lead to disqualification of a trustee or an executor: Conroy at 126–127; Burke v. Burke, 2019 BCSC 383 at para. 43. Mere friction between the trustee and one or more of the beneficiaries is usually insufficient to justify removal of the trustee: Miles v. Vince, 2014 BCCA 289 at para. 84.

Perfection is not expected of an executor or trustee: Dahle Estate (Re), 2021 BCSC 719 at para. 22. The question is whether the trustee’s acts or omissions endangered the administration of the trust: Carpino v. Carpino, 2022 BCSC 2237 at para. 51, citing Parker v. Thompson (Trustee), 2014 BCSC 1916 at para. 37; see also Burke at para. 29.
To remove an executor or trustee for misconduct, the evidence must show they endangered estate property, acted dishonestly and without proper care, lacked capacity to execute their duties, or acted without reasonable fidelity: Conroy at 127; see also Nieweler Estate at para. 33.

Deciding whether to remove an executor or trustee involves considering all the facts, and the context, out of respect for a will-maker’s choice of executor, the court should not interfere except for good reason or, as some cases have said, where doing so is “clearly necessary”: Mardesic v. Vukovich Estate, 30 B.C.L.R. (2d) 170, 1988 CanLII 3125 (S.C.) at paras. 18–19; Burke at paras. 29, 31.
The development of the principles for removal was summarized by the Court of Appeal in Miles at paras. 84–86:

[84] What circumstances justify the removal of a trustee? In Letterstedt …, the court established guidelines justifying the removal of a trustee (at 385-389):

1. If the Court is satisfied that the continuance of the trustee would prevent the trusts being properly executed, the trustee might be removed. It must always be borne in mind that trustees exist for the benefit of those to whom the creator of the trust has given the trust estate.
2. The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or a want of proper capacity to execute the duties, or a want of reasonable fidelity.
3. In exercising the delicate jurisdiction of removing trustees, the Court’s main guide must be the welfare of the beneficiaries. It is not possible to lay down any more definite rule in a matter that is so “essentially dependent on details often of great nicety.” The Court must proceed to look carefully into the circumstances of the case.
4. Where a trustee is asked to resign, and if it appears clear that the continuance of the trustee would be detrimental to the execution of the trusts, even if for no other reason than that human infirmity would prevent those beneficially interested, or those who act for them, from working in harmony with the trustee, and if there is no reason to the contrary from the intentions of the framer of the trust to give this trustee a benefit or otherwise, the trustee is always advised by his own counsel to resign.
5. The lack of jurisprudence in respect of the removal of a trustee reflects that a trustee when asked to do so, will resign.
6. If, without any reasonable ground, the trustee refuses to do so the court might think it proper to remove him.
7. Friction or hostility between trustees and the beneficiary is not of itself a reason for the removal of the trustees. But where the hostility is grounded on the mode in which the trust has been administered, where it has been caused wholly or partially by substantial overcharges against the trust estate, it is not to be disregarded

In Fitzgerald v. Hill, 2022 BCSC 968, despite almost all the beneficiaries seeking to have the executor and trustee removed and a finding that the executor and trustee should have performed his duties in a more cooperative and open manner, Justice Coval did not order removal. He found no endangerment to the estate assets and that no preferential treatment or hostility interfered with the proper administration of the estate.

There is a high threshold that must be met for a removal order and each case turns on its own particular facts and the context of the estate in issue.

Vancouver Estate Lawyer- Lost Wills and The Presumption of Destruction

Trevor Todd and Jackson Todd have over sixty years combined experience in handling estate disputes, including lost wills and the presumption of destruction.

Facts of Re Finsant estate 2024 BCSC 217

The deceased died at the age of 81 years in her home. Searches of the home and her personal effects did not find a will. It was known that she had executed a will, almost 20 years earlier, and that the deceased had possession of it. She lived alone, and had no children or surviving siblings and her home was reasonably orderly.

The court found that she appeared to be mentally competent.

The estate dispute was between the named beneficiaries in the will and her next of kin on an intestacy.

Under these circumstances, the court found that she had either intentionally destroyed the will or was lost, stolen or accidentally destroyed.

There is a presumption of destruction of the will that the court found had not been rebutted, and that she must be presumed to have died intestate.

THE LAW

The presumption of destruction was set out in Welch v. Phillips (1836), 1 Moo PC 299 at p. 302, and remains the law in British Columbia: Haider v. Kalugin, 2008 BCSC 930, at para. 11. If, as here, a will is traced to the possession of the deceased and last seen there and is not forthcoming on death, it is presumed to have been destroyed by the deceased, a presumption that holds unless there is “good and sufficient reason to repel it.”

In modern Canadian civil law, there is only one standard of proof in civil cases regardless of the nature of the allegation, namely, proof on a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, at para. 40. But the quality of the evidence necessary to make a finding on that standard will depend on the inherit probabilities or improbabilities: McDougall; Canada v. Fairmont Hotels Inc., 2016 SCC 56, at para. 36.

As Justice Ehrcke explained in Thierman Estate v. Thurman, 2013 BCSC 503 at para. 43:

The presumption [of destruction] recognizes that the burden of proof is on the party attempting to rely on a non‑original copy of a will. Thus, the presumption of destruction of a will that had been in the testator’s possession but cannot be found on his death may be rebutted by evidence establishing on a balance of probabilities that the will was inadvertently lost or misplaced.

The ultimate issue is whether, on a balance of probabilities, the will was more likely to have been deliberately destroyed because the testator had a change of heart or was more likely lost, stolen or accidentally destroyed. The legal onus is on the applicant – in this case Ms. Beggs – as the person trying to rely on a non‑original copy. What the presumption adds is the common‑sense point that we would expect a person who wants a will to be executed to keep it where it can be found when they die. In the absence of a contrary reason, this is the more inherent probability. The application of the legal standard and burden of proof will take this into account.

In other words, if a will in the deceased’s possession cannot be found after a reasonable search, the quality of evidence necessary to support the inference that it was destroyed intentionally is less than that required to support the inference that it was lost or inadvertently destroyed.

At para. 13 of Haider, the court set out the factors typically looked at in deciding whether the presumption of destruction has been rebutted as follows:

whether the terms of the will itself were reasonable;
whether the testator continued to have good relationships with the beneficiaries in the copy of the will up to the date of death;
where personal effects of the deceased were destroyed prior to the search for the will being carried out;
the nature and character of the deceased in taking care of personal effects;
whether there were any dispositions of property that support or contradict the terms of the copy sought to be probated;
statements made by the testator which confirm or contradict the terms of distribution set out in the will;
whether the testator was of the character to store valuable papers, and whether the testator had a safe place to store the papers;
whether there is evidence that the testator understood the consequences of not having a will, and the effects of intestacy;
whether the testator made statements to the effect that he had a will;

BC Contested Estates- The Criteria For Removing an Executor

Trevor Todd and Jackson Todd have over sixty years combined experience in handling contested estates, including the removal of executors.

The law relating to the removal of an executor was summarized in Nand Estate (Re), 2022 BCSC 1718 and followed in Re Walker Estate 2024 BCSC 250.

The Court has power, under both s. 30 of the Trustee Act, R.S.B.C. 1996, c. 464 as well as its own inherent jurisdiction, to make an order removing a trustee: Dirnberger Estate, 2016 BCSC 439 [Dirnberger Estate] at para. 9, citing Morelli v. Morelli, 2014 BCSC 106 at para. 29.

Section 158(3) of the WESA allows the Court to remove a person entitled under a will from being a personal representative in the circumstances enumerated in that section. Subsection 158(3)(f)(iii) allows for removal where the personal representative is:

(iii) otherwise… unable to or unreasonably refuses to carry out the duties of a personal representative,
to an extent that the conduct of the personal representative hampers the efficient administration of the estate

Notwithstanding that jurisdiction, courts are very hesitant to interfere with the discretion of the will-maker to remove an Executor. To do so, good reason must be shown for believing that the interests of a person entitled under the will are in danger: Re: Estate of Andre Jacques Blitz, Deceased, 2000 BCSC 1596 at para. 20.

Indeed, in deciding whether to remove an estate’s trustee, the Court’s main guide should be “the welfare of the beneficiaries”: Crawford v. Jardine, 1997 O.J. No. 5041 (Ont. Ct. (Gen. Div.)) at para. 18.

In Dirnberger Estate, at para. 11, the Court set out the four categories of conduct on an Executor’s part that will warrant removal as follows:
a) endangerment of the trust property;
b) want of honesty;
c) want of proper capacity to execute the duties; and
d) want of feasible fidelity.

In Parker v. Thompson (Trustee) 2014 BCSC 1916, at paras. 35 to 43, the Court added “actual dishonesty” and “lesser basis of a trustee’s ability to act impartially” as bases for removing a trustee.

It also reiterated the removal of a trustee “should not be lightly entertained”, and citing Radford v. Radford Estate, 2008 CarswellOnt 5297, 43 E.T.R. (3d) 74, set out a number of other considerations to apply when considering an application for the removal of a trustee. They are:

• removal must be the only course to follow;
• non-removal must likely prevent the proper execution of the trust; and
• removal is not intended to punish for past conduct.

The existence of friction between a trustee and one or more of the beneficiaries is usually not sufficient, of itself, to justify the removal of the trustee: Dirnberger Estate at para. 10, citing Erlichman v. Erlichman, 2000 BCSC 173 at para. 8.

Vancouver Estate Lawyer – Gratuitous Transfer Is Gift

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.

UNDUE INFLUENCE

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

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:

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);
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);
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
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.