Varying a Will –  Resolving Resulting Trusts

Challenges of Estate Litigation and Wills Variation in Vancouver BC

One of the many challenges of Estate Litigation and Wills Variation in Vancouver is the need for the Court to make determinations about the intentions of the Deceased. A critical time when this issue arises is in the case of property that may be subject to a resulting trust.

Gratuitous Transfer of Property & Gifts

In 2007, the Supreme Court Canada, made a ruling in a seminal decision called Pecore v. Pecore, 2007 SCC 17. In Pecore and it’s companion case, Madsen Estate v. Saylor, 2007 SCC 18, the Court was forced to deal with the gratuitous transfer of property (in this case it was joint bank accounts). The Court considered the presumption of advancement which historically had meant that when a father made a gratuitous transfer to their child, the law would presume that it was a gift. The same would apply for transfers between spouses.

However, Pecore made the determination that the presumption of advancement did not apply between adult children and their parents. Instead, the (rebuttable) presumption of a resulting trust would apply. For the sake of clarity, here is an example:

Prior to his death, Father (Marshall) transfers his lakeside cottage to his son Marvin in Joint  tenancy. Upon his death, his remaining Children, Ted and Robin assert that the transfer was not meant to be a gift but rather that Marvin was holding the cottage in trust  for Marshall’s estate.

The onus (or the burden) is now on Marvin to establish that his Father, Marshall had intended the transfer to be a gift to him outright and not to the other children by way. Marvin will need to demonstrate that at the time of the transfer, it was Marshall’s intention that the property be a gift to pass by way of joint tenancy to him upon Marshall’s death.

Resulting Trusts

Resulting trusts are important issues to consider if you are trying to vary a will because, often will-makers (or testators) will try to shield their assets from probate fees by naming their children or spouses and joint owners of the property. However, this can have the problematic effect of reducing the value of an estate to be distributed to the remaining beneficiaries.

If you are a spouse or a child of a recently deceased person and you are seeking to vary their will, it is important that you consult with an Will & Estate Lawyer to make sure that no potential assets have escaped the estate, in situations where they can be captured by a claim for a resulting trust.

Finding a Litigation & Estate Lawyer in Vancouver BC

The Kushner Law Group in Vancouver offers complimentary consultations by phone and in-person for most Estate Litigation and Wills Variation matters. Call our Vancouver law firm at 604-629-0432 or contact us online to learn more about how we can help you.