Estate Litigation

Contesting a Gift

Contesting a Gift - Onyx Law Group

Wealthy or otherwise financially savvy people often engage in early estate planning aimed at reducing the size of the estate using trusts or transferring property into joint name with an intended beneficiary in order to minimize taxes and probate fees. In these circumstances, these transferred assets would not form a part of that person’s estate when s/he dies, and will pass directly to the beneficiary in legal name.

The question then arises as to whether the recipient was gifted the asset, or holds legal title to the asset in trust for other intended beneficiaries or the estate of the deceased person. If it is the case of the trust, the trustee would have received instructions from the deceased person as to who are the beneficiaries and the other terms of the trust.

Unfortunately, after the person’s death, the Trustee will often deny the existence of a trust, and claim that the asset was gifted to him or her.

At Vancouver’s Onyx Law Group, we represent people who wish to challenge the rights of another person to the assets he or she has received as a result of another’s death. While the trustee may claim the assets were a gift, our clients may claim they were meant to be distributed by the trustee to others in the family.

When Can You Contest a Gift?

One scenario that may eventually give rise to a dispute is the creation of joint accounts for banking and investments, and also for joint ownership of real property. Prior to a person’s passing, he or she may choose to establish joint ownership of assets with a family member. When the person passes, these assets become the property of the surviving owner. The deceased person’s intent may have been that the surviving person divide the assets equally to beneficiaries according to instructions that the deceased had given to the joint owner prior to his or her death. The majority of the time, the joint surviving owner can be trusted to carry out the testator’s wishes. However, there is a real and substantial danger that joint owners may claim the assets were not to be held in trust, and that they were in fact a gift from the deceased person.

When the deceased person’s intentions of gift versus trust are not written down, the law presumes these assets were to be held in trust. When the asset is transferred to a person in a position to influence or dominate the transferor (for example, in a relationship of caretaker and ward), then the law presumes that the assets were transferred due to the undue influence of the transferee. These presumptions can be rebutted with evidence to the contrary by the transferees, but the onus of proof lies on the transferee regardless.

The advice and guidance of a lawyer is often necessary to analyze the situation and to commence a legal action to attempt to have the assets brought back into the estate, to be distributed as the deceased person intended or to be subject to a wills variation claim pursuant to s. 60 of the Wills, Estates and Succession Act.

Engaging in a legal fight with members of your family over the true intentions of a deceased loved one is always emotionally difficult. At Onyx Law Group, we are competent legal counsel dedicated to advancing our clients’ legal claims while remaining sensitive to their personal goals. To learn more about our approach to the law and our clients, we invite you to read our mission statement.