Contesting a Gift Lawyers in BC

Lawyers for Contesting a Gift

We represent cases where assets are unfairly distributed and claimed as gifts despite the deceased’s intentions.

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.

British Columbia Contesting a Gift Lawyers

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.

Free Consultation

We believe it’s important to know your legal rights and obligations before making any decisions. That’s why we offer 30 minute free consultations to give you the opportunity to discuss your matter with a passionate and knowledgeable lawyer who can advise you on the best steps forward.

When a lifetime gift can be unwound

Gifts made while a person is alive — a transfer of money, a property put into joint names, a bank account shared with one child — are a frequent flashpoint after a death, because whatever was given away is no longer in the estate for everyone else. British Columbia law gives several ways to challenge one.

The three things a valid gift requires

A gift made during a person’s lifetime (an inter vivos gift) is only complete if three elements are present: a genuine intention by the donor to give the property away with nothing expected back; sufficient delivery or transfer of the property to the recipient; and acceptance by the recipient. Miss any one — most often the intention — and there is no gift, and the property is treated as still belonging to the donor or their estate. The person asserting the gift has to prove all three.

Resulting trust or a real gift: Pecore v Pecore

When someone transfers property for free, the law does not assume generosity. The starting presumption is a resulting trust — the recipient is presumed to hold the property in trust for the person who transferred it, unless they can prove a gift was intended. In Pecore v Pecore, 2007 SCC 17, the Supreme Court of Canada confirmed that a gratuitous transfer to an adult child raises this resulting-trust presumption, not a presumption of advancement. The older presumption of advancement (that a gift was intended) now survives mainly for transfers to a minor child. So when an aging parent puts an adult child on title or an account for nothing, the burden sits on the child to show the parent actually meant a gift.

Joint accounts and the right of survivorship

Joint bank accounts are the classic battleground. Following Pecore and Madsen Estate v Saylor, when a parent adds an adult child as a joint account holder, the funds are presumed on the parent’s death to belong to the estate, not to pass to the child by survivorship, unless the child proves the parent intended to gift the survivorship right. The court decides on evidence of the transferor’s actual intention at the time the account was set up, and may weigh contemporaneous documents and conduct.

Undue influence and capacity in a gift

Even a completed gift can fall. Equity presumes undue influence where the donor and recipient were in a relationship of trust or dependency that carried the potential for one to dominate the other — see Geffen v Goodman Estate, [1991] 2 SCR 353. Once that relationship and a transaction that calls for explanation are shown, the recipient must prove the gift was a free, informed, and independent act, often by pointing to independent legal advice. The donor also needs the mental capacity to understand the gift; for a large gift that strips much of the estate, the capacity required can approach that needed to make a will. Challenges are also subject to the limitation periods in the Limitation Act, so acting quickly protects the claim.