Generic selectors
Exact matches only
Search in title
Search in content
Search in posts
Search in pages

Vancouver Gifts Resulting Trusts Dispute Lawyers help sort out whether property was really gifted to a loved one by the deceased or put in their name to be held in trust for the deceased or the deceased’s estate. Our Vancouver Gifts and Resulting Trusts Dispute Lawyers know losing a loved one is a shock and being excluded from a fair share of the estate because of a disputed gift just adds insult to injury.


Maclean Estate Litigation is part of the Top Choice Awards Best  Vancouver Family Law Firm for the last 3 out of the 4 years. Our award-winning Vancouver Estate Dispute Lawyers are fluent in Mandarin, Cantonese, Punjabi, Farsi, Russian, Hindi, and Polish. We have 5 officers in BC and a new flagship office in Calgary. Call our top-rated Vancouver Gifts Resulting Trusts Dispute Lawyers toll free at 1-877-602-9900 for guidance on what can be multi-million dollar estate disputes. You can be confident our top team can provide sage legal advice to you.

Vancouver Gifts Resulting Trusts Dispute Lawyers Explain How Gifts Work

Lorne N MacLean, QC founder of our high net worth estate dispute team likes the latest  2017 BC Appeal Court decision in Mckendry v Mckendry that explained:

[31]         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.

[32]         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.

[33]         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.

[34]         The intention of a person who transfers property gratuitously to another is sometimes difficult to determine.  This is particularly true where the transferor is deceased.  For this reason, common law rules have developed to guide the court’s inquiry.  In Pecore, the Supreme Court of Canada explained those rules and how they apply to property held in joint tenancy.

Vancouver Gifts Resulting Trusts Dispute Lawyers Explain Resulting Trust Means No Gift Made!

Our Vancouver Gifts Resulting Trusts Dispute Lawyers know the intention is key but how is this sorted out when the person who transferred the property is dead as our BC Appeal Court states above?

[35]         In summary, a resulting trust arises when title to property is held in the name of a party who gave no value for it.  In such circumstances, that party is obliged to return the property to the original title owner unless he or she can establish it was given as a gift.  In the case of a gratuitous transfer, a rebuttable presumption of resulting trust applies when the transfer is challenged.  The judge commences the inquiry with the presumption, weighs all of the evidence, and attempts to ascertain the actual intention of the transferor.  The governing consideration is the transferor’s actual intention. The presumption of resulting trust determines the result only where there is insufficient evidence to rebut the presumption on a balance of probabilities: Pecore at paras. 20, 22-25, 44; Kerr v. Baranow, 2011 SCC 10 at para. 18.

[36]         When legal title to property is transferred gratuitously and a resulting trust arises, the right of survivorship is held on trust by the transferee unless otherwise established.  In Bergen, Newbury J.A. explained why:

[42]      … Consistent with this, the authors of Waters [Donovan W.M. Waters, Mark R. Gillen, & Lionel D. Smith, Waters’ Law of Trusts in Canada, 4th ed. (Toronto: Carswell, 2012)] in the most recent edition (post-Pecore) state:

If A supplies the purchase money and conveyance is taken in the joint names of A and B, B during the joint lives will hold his interest for A, B will also hold his right of survivorship − again by way of resulting trust for A’s estate, because that right is merely one aspect of B’s interest. In other words, the starting point is that B holds all of his interest on resulting trust for A, or A’s estate. However, evidence may show that, while A intended B to hold his interest for A during the joint lives, it was also A’s intention that, should he (A) predecease, B should take the benefit of the property. The presumption of resulting trust would then be partially rebutted, in relation to the situation that has arisen, so that B would not hold his interest (now a sole interest and not a joint tenancy) on resulting trust. He would hold it for his own benefit. [At 405; emphasis added.]

Transfers of Land

[37]         Academics have sometimes questioned whether the presumption of resulting trust applies to gratuitous transfers of land, although there is authority from this Court to support the view that it does: Fuller v. Harper, 2010 BCCA 421 at para. 43.  In this case, it is unnecessary to decide the issue because there is clear evidence of Mary’s intentions.  Regardless, transfers of land are subject to statute.  In particular, the Law and Equity Act and the Land Title Act, R.S.B.C. 1996, c. 250, Part 12 both apply to transfers of real property.  Pursuant to the Law and Equity Act, contracts respecting land must be in writing to be enforceable.  Pursuant to the Land Title Act, transfers of land must be in a prescribed or otherwise acceptable form and registered against title to land.

[38]         The judge referred to s. 59(3) of the Law and Equity Act, but not s. 59(1), in reaching her conclusion.  In my view, both ss. 59(1) and (3) of the Act are relevant.  They provide, in part:

59 (1) In this section, “disposition” does not include

(a) the creation, assignment or renunciation of an interest under a trust, …

(3) A contract respecting land or a disposition of land is not enforceable unless

(a) there is, in a writing signed by the party to be charged or by that party’s agent, both an indication that it has been made and a reasonable indication of the subject matter.

Vancouver Gifts Resulting Trusts Dispute Lawyers note that the task for the court was easier in Mckendry the deceased mother’s intention to make a gift was clear said the Appeal court as she created a written document clearly setting out her intentions to gift the property as the Appeal Court held:

Her intention was made manifest in the signed two-page document her lawyer prepared and no further act of delivery was required because of the existing joint tenancy.  In particular, nothing more would have been gained had Mary executed a deed of gift under seal, given her clear and formally expressed intention. The immediate inter vivos gift was complete and binding.  In my view, Mary’s intention should prevail.

Our Vancouver Gifts Resulting Trusts Dispute Lawyers will help you get to the bottom of the real intention of a loved one with respect to the valuable property to help you obtain justice and your fair share. Strict timelines apply for claiming relief so pick up the phone now and call our estate dispute lawyers now at 1-877-602-9900.