Vancouver Estate Lawyer – Gratuitous Transfer Is Gift

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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.

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