Vancouver Family Gift Dispute Lawyers get involved in common law and married spousal claims where there is an argument over whether a gift, loan, or investment occurred. A recent case raising these issues was the subject of a recent Vancouver Sun article.
Lorne MacLean, KC founder of our team of Vancouver Family Gift Dispute Lawyers and winner of a recent dismissal of a $50 million claim by a disgruntled son-in-law explains the concepts of gift, loan or investment. Our Vancouver Family Gift Dispute Lawyers handle both sides of these contentious disputes. In the recent case of Levington Benson a man paid $80,000 to jointly invest in property he said, while the woman he lived with said it was a gift.
What Law Governs Vancouver Family Gift Disputes?
Our Vancouver Family Gift Dispute Lawyers explain that three conditions, as summarized by the Canadian Government summary, must be met for a gift inter vivos to be valid.[1]
- The first one is that the individual making the transfer actually intends to make a gift; it must be demonstrated that the donor’s objective was to make a gift when he or she transferred the property.[2]
- The second condition is that the donee accepts the gift made to him or her; the donee must agree to the transfer of property that the donor made in his or her favour.[3]
- In general, such acceptance is presumed once the third condition is met, that is to say the delivery of the property that is the subject-matter of the transfer by the donor to the donee.[4]
- The donor has to divest him or herself of the property; he or she has to place it in the possession of the donee. This delivery confirms the donor’s intent to make the gift[5] and must be deemed to be unequivocal since the courts will refuse to intervene to perfect a gift that is not complete.[6]
The judge found the facts were:
[51] The inconsistencies in the parties’ stories makes it difficult to accept either version. I conclude that neither was being completely forthcoming about the facts generally, or to the nature of their relationship specifically. I find that the most logical characterization of their relationship is as follows:
a) Mr. Levington was clearly infatuated with Ms. Benson.
b) Ms. Benson did not feel the same way about Mr. Levington, but was more than happy to take advantage of his infatuation to secure assistance for herself, most notably the provision of $80,000.
c) There was no gift at the time of the initial Contribution. Not even Ms. Benson alleges that there was a gift at this time. However, particularly given the absence of any detail about the terms of any loan, I find that the $80,000 was in fact an investment at the time it was made.
d) In terms of the alleged oral conversation at Christmas, I do not accept Ms. Benson’s version that she only accepted the $80,000 out of fear. Again, she chose the option that would create the maximum risk for her, which is not logical.
e) The subsequent messages between the parties and to others do create some confusion as to the proper characterization of the $80,000. However, (1) the messages collectively are at best ambiguous; (2) the weight that can be applied to these messages is lessened by the factors noted above; and (3) this “mixed messaging” appears to have largely occurred during the period between the much clearer evidence as to the original provision of the $80,000 and the subsequent evidence of a 20% interest being formally transferred to Mr. Levington. The intention and legal position at those two bookend dates is far more important than the evidence between those dates.
f) By the time of the July 2020 meeting with the notary, I find that Ms. Benson must have concluded that the plaintiff was entitled to a 20% share in the Home. Whether this was the result of guilt, genuine affection, or a recognition that she had not satisfied the plaintiff’s stated condition for the alleged gift, is largely beside the point – the transfer recognized was made for good consideration, being the Contribution.
g) I find that Ms. Benson did attend at Mr. Meyer’s office, and signed the necessary transfer documents. The signature on the transfer documents is not so radically different from Ms. Benson’s verified signature that it overwhelms the weight of the direct evidence from Mr. Levington, the inferences to be drawn from the messages, and, most importantly, the evidence from Mr. Meyer.
Vancouver Family Gift Dispute Lawyers 604 602 9000
What is the Law?
Our top rated Vancouver Family Gift Dispute Lawyers note that the judge confirmed the law:
[65] The common law presumes bargains, not gifts: Kerr v. Baranow, [2011] 1 S.C.R. 269 at para. 19.
[19] As noted by Rothstein J. in this passage, presumptions may come into play when dealing with gratuitous transfers. The law generally presumes that the grantor intended to create a trust, rather than to make a gift, and so the presumption of resulting trust will often operate. As Rothstein J. explained, apresumption of a resulting trust is the general rule that applies to gratuitous transfers. When such a transfer is made, the onus will be on the person receiving the transfer to demonstrate that a gift was intended. Otherwise, the transferee holds that property in trust for the transferor. This presumption rests on the principle that equity presumes bargains and not gifts (Pecore,at para. 24).
Further, it is only the intention of the contributor at the time of the acquisition of the property that counts: Ibid at para. 25.
Benson Wins 20% Investment 604 602 9000
[66] I find that Ms. Benson’s evidence carries insufficient weight to rebut the presumption that the provision of $80,000 by Mr. Levington was intended to be a bargain and not a gift. There would be no reason for Ms. Benson to complete the later transfer to Mr. Levington if the Contribution was in fact a gift.
If you have a high stakes case involving disputed gifts, loss of excluded property issues, and whether you made a loan or an investment, contact our Vancouver Family Gift Dispute Lawyers immediately.
