Wealthy elderly parents need to avoid bad BC Gift Dispute Mistakes. What is the law on gifts in BC? Many times elderly parents can become confused and make gifts they didn’t understand or fully consider. Sometimes unscrupulous children dupe a parent into making a substantial monetary transfer. Today, downtown Vancouver estate litigation and elder abuse lawyer Eleanor Surajballi helps wealthy parents Avoid Bad BC Gift Dispute Mistakes.
What Is The Law Of Gifts In BC? 1 877 602 9900
What is the law on gifts in BC? The BC Court of Appeal case of McKendry v. McKendry 2017 BCCA 48 explained the law of gifts at paragraphs 31 – 35 of the judgment.
31. A gift is a gratuitous transfer made without consideration. Two requirements must be met for an inter vivos gift to be legally binding:
a) the donor must of intended to make a gift;
b) the gift must of been delivered
Can you take back an ill considered gift? Once a gift has been perfected it is not easy. Our BC Courts’ made a third consideration of the Doctrine of wrongful (unconscionable) procurement in Sandwell v. Sayers 2022 BCSC 605
What are the elements of the doctrine of wrongful (unconscionable) procurement?
The doctrine of unconscionable procurement involves setting aside or voiding a gift where the gift maker did not understand what he or she was doing. For this doctrine to apply, two elements must be present:
- There must be a significant benefit obtained by the person receiving the gift; and
- The person receiving the gift must be actively involved in obtaining the benefit of that gift from the gift maker.
Once these two elements are established, there is a presumption of fact that operates to allow the court to infer that the donor “did not truly understand what they were doing when they made the transaction”. BC Courts are not sure if the doctrine of unconscionable procurement can be used to help a wealthy parent Avoid Bad BC Gift Dispute Mistakes.
Avoid Bad BC Gift Dispute Mistakes 1 877 602 9900
BC Court’s 3rd consideration of the doctrine of wrongful (unconscionable) procurement:
Earlier this year, the BC Courts considered for the 3rd time whether the Doctrine of unconscionable procurement would be adopted as good law in the case of Sandwell v. Sayers 2022 BCSC 605.
In Sandwell, the Plaintiff father transferred an interest in his residence to his Defendant daughter, thereby making her a joint tenant. The Plaintiff father later commenced proceedings to set aside the transfer into joint tenancy on the basis that the Defendant daughter had caused the transaction to occur for her benefit and that the Plaintiff father did not fully comprehend the effects of the transfer. The Plaintiff father was not successful in setting aside the transfer under the Doctrine. Nor was the Plaintiff father successful on the basis of unjust enrichment.
In declining to set aside the transfer, the Court embarked on a historical analysis of the Doctrine and raised concerns about endorsing the Doctrine as opposed to reverting to the traditional grounds such as: undue influence, incapacity and resulting trusts, to set aside transactions. The Court found that the facts of the case did not rise to the threshold of the Doctrine and as a result, declined to make a decision that was beyond the scope of the facts.
Is the doctrine of wrongful (unconscionable) procurement something that should be plead moving forward?
The Court treaded a very fine line in Sandwell by stating that they did not intend to make decisions beyond the scope of the facts before it. Whilst the door remains ajar on the issue of whether doctrine of wrongful (unconscionable) procurement applies in British Columbia, it would appear from the Court’s analysis in Sandwell that the doctrine should not apply in British Columbia, or in the alternate that if it does, that it does so on very specific circumstances.
Wealthy parents should be very careful before making a gift. If you questions on : What is the law on gifts in BC?: we recommend that you contact our top estate litigation dispute and elder abuse lawyers.
