S 20 Patients Property Act Creates Rebuttable Presumption re “Gifts”

Patients Property Act

The decision Sutherland, committee of the Estate of Fountain v Dorland and Rendell 2012 BCSC 615, which disinherited.com blogged about yesterday, also contained  an additional issue relating to section 20 of the Patient’s Property Act, which says as follows:

20. Every gift 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 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 of the time of the gift, grant, alienation, conveyance or transfer of the mental condition of the person.


In Taylor v. Jenkins (1986), 1 B.C.L.R. (2d) 207, Macdonell J. held that the phrase “shall be deemed to be fraudulent and void” raises a rebuttable presumption of incompetence.

The onus is on the party seeking to uphold the transaction to rebut the presumption (Lasky (Public Trustee of) v. Prowal (1994), 7 E.T.R. (2d) 70 (B.C.S.C.) at para. 39).

In the Lasky  case an elderly, frail, and blind man transferred title to his house into joint tenancy with the defendant, his niece and her son, and also gave them each $20,000 a few days prior.

No consideration was paid for the house.

When a friend learned of the transfer and questioned  him about it, he denied having done such a thing.

The Public Guardian as committee of the plaintiffs estate, brought an action to set aside the transfer of the home and the payment of the cheques.

The action was allowed.

The court  held that the defence bore the onus of rebutting the presumption in section 20  Patient’s Property Act, that the gift is deemed to be fraudulent and void.

The court found that the facts of the case supported the inference of undue influence having been exerted by the defendants in obtaining the two cheques and  the transfer of the house.

No legal independent advice had been provided to the plaintiff with regard to those transactions.

The conduct of the defendants in obtaining the benefits for themselves by exercising undue influence over the plaintiff when he was in an immensely comprised state was reprehensible, and the plaintiff was therefore entitled to special costs.

Special costs normally means full indemnity to the plaintiff of all the plaintiff’s legal fees and disbursements.

The court followed the decision of the BC Court of Appeal in Everywoman’s Health Center Society 1988 v Bridges (1991) 54 BCLR (2d) 294 (CA)

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