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Category: Trusts

Dividing an Estate: Gift During Lifetime of Parent to Adult Child

When dividing an estate in BC, it is essential to determine what property of the will-maker forms part of the estate. If a will-maker made a valid gift of property during his or her lifetime, that property does not fall into the estate and the terms of the will do not apply to it. This […]
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Vancouver Estate Litigation: Did Mother Intend to Give House to Son?

As I have recently discussed, gratuitous inter vivos transfers made without consideration frequently give rise to Vancouver estate litigation. As people age they often transfer property gratuitously to their adult children, and then hold it with them in joint tenancy. If, after the parent dies, it is unclear whether the parent intended to gift the […]
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Breach of Fiduciary Duty Under Power of Attorney

A “power of attorney” is a legal document signed by the donor that appoints an agent (the “attorney”) and gives that agent the authority to carry out certain tasks for the donor. As a fiduciary, an attorney acting under a power of attorney is obliged to act only for the benefit of the donor and […]
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Joint Tenancy and the Right of Survivorship

As people age they often transfer property gratuitously to their adult children, and then hold it with them in joint tenancy. Their goals may vary – some seek assistance with financial management, while others wish to gift survivorship rights. In light of Pecore v. Pecore, 2007 SCC 17, the intention of the transferor governs what passes […]
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Joint Bank Accounts and the Presumption of Resulting Trust

Where a parent makes a gratuitous transfer to an adult child by placing funds in a jointly-held bank account, there is no presumption of advancement and in fact, in modern social conditions the reverse is true: there is a presumption of a resulting trust where a parent makes a gratuitous transfer to an adult child. […]
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Financial Nondisclosure the “Cancer” of BC Estate Litigation

In Haley (Re), 2017 BCSC 2057, http://www.courts.gov.bc.ca/jdb-txt/sc/17/20/2017BCSC2057.htm nondisclosure of financial information and assets surrounding the passing of accounts was described as the cancer of BC estate litigation. Failure on the part of the administrator, executrix, or trustee to disclose and consult with beneficiaries in a timely manner results in the failure to pass accounts as […]
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Resulting Trusts: Tax Filings as Evidence of Transferor’s Intent

A “resulting trust” arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner. There is a presumption of resulting trust where property is acquired with one […]
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Proprietary Estoppel: Are Promises Enforceable?

Proprietary Estoppel: Are Promises Enforceable? The equitable doctrine of proprietary estoppel can bind a person to their word. For example, if a sister promises her brother that he can acquire the interest she will inherit in their mother’s house if he moves back home to care for their aging mother, and the brother acts on […]
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“Good Conscience” Constructive Trust in Non-Agency Scenario

The most common basis for a constructive trust is unjust enrichment, but on some occasions, even where there is no unjust enrichment in the traditional sense, “good conscience” requires the imposition of a constructive trust to address wrongful conduct. “Good conscience” constructive trusts can be traced to Soulos v. Korkontzilas, [1997] 2 S.C.R. 217, in […]
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Resulting Trusts: Critical Time for Determining Intent

Resulting trusts are as firmly grounded in the settlor’s intent as express trusts, but with this difference: the intent is inferred or presumed as a matter of law from the circumstances of the case. In Friskie v. Piovesan Estate, [1998] B.C.J. No. 1837 (S.C.), Saunders J. applied the doctrine of resulting trust where children transferred […]
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