Mother’s Advancement to Son Found to Be Loan and Not Gift On Appeal

Mother's Advancement of ,000 to Son , Found to Be Loan and Not Gift

Mother’s Advancement of $50,000 to Son Who Died Found to Be a Loan and Not a Gift By Appeal Court

It is often difficult to determine the intention of the grantor when monies are advanced for no consideration from one party to another and it is not properly.

This is often the case where one parent for exaple advances significant monnies to a child without stipulataing properly whether the moneis were a GIFT or a  LOAN.

This was the situation in the Beaverstock appeal decision Beaverstock v Beaverstock 2011 BCCA 413

In May, 2005, the appellant advanced $50,000 to her son Dan Beaverstock which he applied to refinancing the purchase of some property in Alberta. Dan Beaverstock subsequently died in December 2007. The respondent is his widow and is the executrix and sole beneficiary of his estate.

The appellant pleaded the $50,000 was a loan to her son and the respondent jointly, repayable on demand. Alternatively, she pleaded it was a loan to her son and that the respondent, as executrix, had improperly distributed the proceeds of the estate to herself without first paying this debt from the estate. She sought judgment for $50,000 against the respondent personally and in her capacity as executrix and a declaration that the respondent held all sums received from the estate in trust for her pending satisfaction of her claim. The respondent denied the advance was a loan to her and her husband and pleaded it was a gift to him. It was common ground that the appellant had demanded payment before action and that the respondent had refused to pay.

The parties agreed the action should be resolved on a summary trial pursuant to Rule 18A, summary trial

The appellant deposed that her son asked to borrow $50,000 to help him refinance the purchase of property that he had purchased in Alberta, since he was having difficulty meeting the mortgage payments. She said he “was very clear that he wanted to ‘borrow’ the money from me and that he was seeking a ‘loan’.” She said she agreed to lend him the money and that she caused it to be deposited in the joint account of her son and the respondent. She said she did not discuss the loan again with him until a few weeks before his death when he told her he was going into business with a friend and was optimistic that he “should be able to repay the loan very soon.” The appellant also filed affidavits of three persons who said her son had told them he had borrowed the money from the appellant and that he owed her the money.

The respondent deposed that she was Dan Beaverstock’s wife at the material times and that they had separated about two weeks before his death. She said she had no knowledge, at the time, of the transaction between her husband and his mother and did not know that $50,000 had been deposited in their joint account. She said, as well, that her husband told her prior to their separation that the appellant had given him $50,000 and that he believed this amount to be an advance on his inheritance and that he would never have to repay it. She also asserted facts calculated to cast doubt on the reliability of the evidence of the witnesses who deposed that Dan Beaverstock told them he had borrowed the money from his mother. The respondent also filed the affidavit of her mother, who deposed that the appellant told her “on numerous occasions” that Dan Beaverstock and the respondent “owed her $50,000 relating to money provided to assist with the Alberta property.” She said she told the appellant to talk to Dan Beaverstock about it and leave her out of it.

There was also conflicting evidence concerning whether the respondent had acknowledged to the appellant and others that the advance was a loan and had admitted an obligation to repay it.

The correct approach to the resolution of this dispute is not in dispute. It is set out in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795. Whether the transfer was a loan or a gift depends on the actual intention of the appellant when she made the advance, which is a question of fact. As the advance was gratuitous, the onus was on the respondent to demonstrate that the appellant intended a gift, since equity presumes bargains, not gifts (para. 24). This equitable principle gives rise to a presumption the son received the money on a resulting trust, which is a rebuttable presumption of law. The trial judge was therefore required to presume the advance was not a gift and to determine whether the respondent had satisfied the burden of rebutting the presumption of resulting trust on a balance of probabilities (para. 44).

The trial judge made no mention of the presumption. Further, he made no finding of fact as to the appellant’s actual intention. Indeed, it appears he did not consider that question. Rather, it appears he considered the burden was on the appellant to establish certain specified things and that, since she failed to do so, her claim was unsustainable as a matter of law

The factors to which the trial judge referred are not substantive elements of a claim that a gratuitous transfer was a loan and not a gift. Rather, they are items of circumstantial evidence relevant to the transferor’s actual intention. Moreover, they are not exhaustive of the evidence that may be considered in determining the transferor’s intention. They are to be weighed by the trial judge along with all of the other evidence in determining the transferor’s actual intention as a matter of fact, which is the pivotal fact on which the action turned. It is not evident from the trial judge’s reasons that he turned his mind to this question.

In failing to begin his analysis with the presumption of resulting trust and in failing to make a finding as to the critical fact – the appellant’s actual intention – the trial judge erred in law.


Appeal Allowed- Mother Wins back the $50,000.

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