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Promised Inheritance May Be Enforced By Resulting Trust

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Parents often promise their children that they will inherit certain property or assets when they die; when the promised inheritance is not reflected in the will or in the way the parents arrange their affairs, the court may find that the promised inheritance is held in a “resulting trust” in favour of the children.

The purpose of this post is to look at how a resulting trust may be found in a situation where promised inheritance is unfulfilled. To that end, it is useful to look at Friskie v. Piovesan Estate, [1998] B.C.J. No. 1837 (S.C.), a case in which a resulting trust was found. In that case, a father promised his children that they would inherit an interest in property upon his death, but his will and the way he arranged his affairs didn’t live up to his promise. The court looked at the evidence and determined that the father’s intention was for his children to inherit his share of the property, despite the fact that the property was registered in his second wife’s name.

Let’s examine the facts in Friskie v. Piovesan Estate in more detail to see how a promised inheritance may be enforced by a resulting trust.

Mother died first; promised inheritance to her children

Spouses named Gino and Vittoria Piovesan worked very hard to save up and buy two adjoining lots in Burnaby. They built a house on Lot 2, where they lived with their three children, and left Lot 1 vacant. Vittoria became ill and died; before she died, she expressed her wish to her eldest daughter that her estate would be distributed in equal shares among the three children, making it clear that she expected Gino to also leave his interest in the property to the children when he died. At that time, Gino agreed that his wishes were the same as Vittoria’s. After her death, title in the lots was held by Gino and the three children as “joint tenants.”

Father remarried but confirmed promised inheritance to children

A few years after Vittoria’s death, Gino married a woman name Rosa, who had one adult child of her own. Rosa moved into the family home on Lot 2. Gino and Rosa signed a marriage agreement which stated that when each died, their respective estates would benefit their own children and not each other. Gino also redid his will after his marriage to Rosa, confirming his intention that his estate be divided equally among his children. Gino made no provision in this will for Rosa because they agreed that each had sufficient assets of their own and that their respective families should benefit from their estates.

Children transfer property to father, relying on promise of inheritance

Several years later, Gino and Rosa decided to build a new house on Lot 1 and to sell the house on Lot 2. All of the children agreed to transfer their interest in Lot 1 to their father at that time because they relied on their father’s promise that they would inherit their father’s interest in the family property when he died. Their interest in the property was transferred to Gino and Rosa as “joint tenants”, with Rosa paying the $40,000 purchase price to Gino’s children. The new house was built on Lot 1. When it was finished, the family house on Lot 2 was sold for approximately $200,000 and the proceeds of sale were split one-half to Gino and one-half to the three children, divided equally.

Father changes his will; children discover they did not inherit the property

A few more years passed when, without his children’s knowledge, Gino made a new will leaving $100,000 to be split among his children with the rest of his estate going to Rosa. Five years later, Gino died; it was then that his children discovered they did not inherit any interest in the property in their father’s will as promised. In fact, the property was not part of the father’s estate at all because of what is known as the “right of survivorship” – Gino and Rosa held title to the property as joint tenants, so Gino’s interest in the property automatically went to Rosa when he died. Gino’s children brought a legal action against Rosa for a one-half interest in their father’s home.

Intention is the key to finding a resulting trust

The issue for the court was whether there was enough evidence to show that Gino intended to share the property with his children. The court found that there was indeed enough evidence of his intention. Over the years, Gino repeatedly expressed that intention (for example, in the earlier versions of his will and the marriage agreement) and it was consistent with the manner in which he and Rosa organized their business affairs up until the time the property transfer was made. His promises were not of a “fleeting nature.” Gino persuaded his children to transfer their title to the property that they had inherited from their mother by promising them they would get his interest in the property upon his death and that he intended that his promises would be kept.

When the property transfer to Gino and Rosa as joint tenants was signed by his children, his children did not intend to transfer the title in a way that prevented them from taking the interest in the property promised by their father, and they relied on his promises that they would in time inherit an interest in the house. Gino’s children did not understand or notice that the term “joint tenant” on the transfer document would remove the property from their father’s estate because of the right of survivorship.

Timing is also important

After the property was transferred to Gino and Rosa, Gino changed his will, so it could be said that he changed his intention after the children transferred their interest in Lot 1. However, the critical time was the moment the children transferred the property, acting on his promises. At that moment, he intended to share his property with his children, so his interest in the property became impressed with a resulting trust in favour of the children.

What the children were awarded by the court

The value of the property on the date of Gino’s death was $430,000. The children received judgment in the amount of roughly half of the value of the property ($100,000, in addition to the $100,000 received as a bequest in their father’s will). This was seen as fair because it recognized the promise to the children, of which Rosa was aware, and the fact that Rosa was also entitled to a share of the property that she and Gino bought together as a couple.

Take home point on enforcing a promised inheritance by resulting trust

Intention is the critical issue when determining whether promised inheritance left unfulfilled will be enforced by the courts by way of a resulting trust. To find a resulting trust in such a situation, the court must be satisfied that the implied or express intention of the deceased person was to share the property or asset with the person claiming an inheritance.


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