Vancouver express resulting trust lawyers at MacLean Family Law point out this area of law is often crucial to family and estate litigation disputes involving assets worth millions of dollars. Vancouver express resulting trust lawyers know that the evidence involved in dealing with these cases is often old, witnesses may be deceased and documents evidencing intention do not exist. Our lawyers act across BC from 5 offices located conveniently in Vancouver, Surrey, Richmond, Kelowna and Fort St John and in downtown Calgary.
In family cases property may be placed in a child’s name by a parent to be held in trust but when a separation occurs spouses and their parents may fight over who the real owner is. Similar arguments may exist in estate fights when someone promised to hold property for someone else but at a later date this promise is denied. Sometimes gifts are disputed long after a transfer occurs.
MacLean Law’s Vancouver express resulting trust lawyers point out that In the recent case of Creyke v. Creyke the BC Court Of Appeal confirmed a trial judgment deciding that a trial by affidavits without any witnesses taking the stand at atrial was not appropriate to determine the intention related to an express or resulting trust dispute.
The suitability of a matter for summary trial is a discretionary decision entitled to deference absent clear error. The intention of the transferor in 2003 was in issue and the judge did not err in concluding that he could not find the facts necessary given the complexity of the issues and the absence of and conflicting evidence on matters that occurred years earlier. In addition, the judge did not err in holding that even if he could find the facts necessary, it would be unjust to do so.
Vancouver Express Resulting Trust Lawyers
Vancouver express resulting trust lawyers also want the public to be aware that the pleadings filed by the parties and their lawyers are crucial in deciding a dispute:
Pleadings
[47] Pleadings define the issues of fact and law for determination in an action. Amongst other things, they give opposing parties fair notice of the case to be met and provide the boundaries and context for document disclosure and the presentation of evidence at trial: Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 (CanLII) at para. 43; Homalco Indian Band v. British Columbia, [1998] B.C.J. No. 2703 at para. 5 (S.C.).
[48] Rule 3-3(2) requires that a response to civil claim set out whether each fact in the notice of civil claim is admitted, denied or outside the knowledge of the defendant. A general denial of the facts alleged by the plaintiff, or traverse, is insufficient. The response must concisely set out the defendant’s version of any fact that is denied and any additional material facts the defendant believes are related to the issues for determination. In addition, if a party denies an allegation of fact in the previous pleading of the opposite party it must not be done evasively and the point of substance must be answered (Rule 3-7(15)). Where a response fails to meet these criteria it may be struck, although an opportunity to amend may be afforded. A defendant will not be permitted to prove material facts that differ from those alleged by the plaintiff unless the defendant’s version of the material facts is pleaded: Royal Bank of Canada v. Pisani, 2014 BCSC 761 (CanLII) at para. 12; Royal Bank of Canada v. Roberts, 2014 BCSC 1797 (CanLII) at paras. 7-8; Patym Holdings Ltd. v. Michalakis, 2005 BCCA 636 (CanLII).
Vancouver Express Resulting Trust Lawyers Explain What These Trusts Are
Our Vancouver express resulting trust lawyers know this area of law is complex and can be confusing. So what are resulting trusts and express trusts anyhow? Our BC Court of Appeal gives agreat summary of this law for which we are grateful:
Express and Resulting Trusts
[49] A trust may be created in one of two ways: by an intention to settle property by way of a trust or by imposition of law to secure a just result. In Suen v. Suen, 2013 BCCA 313 (CanLII), Madam Justice Smith reviewed the essential principles that apply to the creation of express, resulting and constructive trusts.
[50] An express trust is created by intention. It comes into existence when the alleged settlor clearly and specifically states that certain property is to be held in trust. At para. 45 of Suen, Madam Justice Smith explained:
[45] An express trust is created when the requirements of certainty of intention, subject, and objects of the transfer have been established and the trust property has been vested in the trustee: [Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 3rd ed. (Toronto: Carswell, 2009)] at 132 and 167. …
[51] Intention is also a key element in a resulting trust analysis. A resulting trust does not, however, require proof of intention in precisely the same way. Rather, it is a legal doctrine imposed “to return property to the person who gave it and is entitled to it beneficially, from someone else who has title to it”: A.H. Oosterhoff et al., Oosterhoff on Trusts: Text, Commentary and Materials, 7th ed. (Toronto: Carswell, 2009) at 25, cited with approval in Suen, at para. 37.
[52] The presumption of resulting trust is engaged where an owner of property gratuitously transfers title to the property to another. The actual intention of the grantor is the governing consideration. However, where a gratuitous transfer is challenged the onus is on the transferee to demonstrate that a gift was intended. Unless the presumption is rebutted on a balance of probabilities, the transferee holds the property in trust for the grantor: Pecore v. Pecore, 2007 SCC 17 (CanLII) at paras. 24, 43-44.
[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.
[63] In my view, the judge was not clearly wrong to conclude it would be unjust to decide the claim on a summary trial given the state of the pleadings and the vagaries of the historical evidence, including that surrounding Bruce Creyke’s acquisition of the Certificate and the Assets. The factual and legal issues are complex, some of the principal actors are deceased and the judge found that the parties had not fully directed their minds to the legal concepts involved in their dispute. In these circumstances, he did not err in the exercise of his discretion in declining to grant judgment on the summary trial.
