Sentences with phrase «of resulting trust»

Note that there may be equitable remedies such as the presumption of resulting trust, but all the warnings about unjust enrichment apply here as well.

There is a long settled doctrine of resulting trust in favour of unjust enrichment.

It is inconsistent with the underlying principles of resulting trust law.

The property consequences of the breakdown of common law relationships are instead governed by the common law - namely the principles of resulting trusts and remedial constructive trusts.

Unlike the situation of a resulting trust, the lien holder does not receive the benefit of any appreciation in the value of the property after it is sold.

If a presumption of resulting trust is found, the property would make up part of the estate's assets for distribution.

The doctrine of resulting trust is an equitable principle which steps in to correct what would otherwise be an injustice.

The court referred to the 2007 Supreme Court of Canada decisions re Pecore v Pecore, and Madsen Estate, and stated that it now appears that a presumption of resulting trust applies in all cases of gratuitous transfers, with some very narrow exceptions, such as transfers between parents and minor children.

(d) there may be circumstances where a transfer between a parent and an adult child was intended to be a gift and it is open to the party claiming that the transfer is a gift to rebut the presumption of resulting trust by bringing evidence to support that claim...

Because if purchase funds come from somebody other than the prospective owner, the doctrine of resulting trust presumes that, regardless of who is on title, the owner holds the property in trust for whoever advanced the funds.

[31] Fred argues that the much less common type of resulting trust, the common intention resulting trust, applies.

Further, the executor might not want to pursue a claim of a resulting trust where they were a joint tenant with the right of survivorship.

In your case, it could likely be argued that the gift of half of your mother's condo and cottage was not an outright gift, but rather, a case of a resulting trust.

The point of the resulting trust is that the claimant is asking for his or her own property back, or for the recognition of his or her proportionate interest in the asset which the other has acquired with that property.

The trial judge held that deceased intended to gift camper to D and B, but the Trial judge held that D did not rebut presumption of resulting trust with respect to the transfer of $ 408,000.

The trial judge was therefore required to presume the advance was not a gift and to determine whether the respondent had satisfied the burden of rebutting the presumption of resulting trust on a balance of probabilities (para. 44).

When handling domestic contracts (for example, a cohabitation agreement for unmarried parties or a prenuptial agreement) always require that the parties have independent legal advice, and discuss the implications of resulting trusts — not just with respect to purchase money, but also with respect to contributions to value — with your client.

The presumption of resulting trust determines the result only where there is insufficient evidence to rebut the presumption on the balance of probabilities — Pecore at paras 20, 222 - 225.

[122] If the presumption of resulting trust arises, it may be rebutted by evidence of the transferor's intention at the time of transfer to grant beneficial ownership to the recipient of the gratuitous transfer.

The trial judge could only rely on the presumption of resulting trust if the evidence was insufficient to establish Mr. Fuller's actual intent at the time of the transfer: Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795.

5 The topic of gratuitous transfers between parents and adult children was covered in Pecore v. Pecore, [2007] 1 S.C.R. 795, in which it was held that these come freighted with a rebuttable presumption of resulting trust putting the transferee to the onus of demonstrating that a gift was intended.

The Court found that the presumption of resulting trust did not apply to the payment of a million dollar line of credit towards the house by the respondent.

In a recent case in this Court, Fuller v. Harper, 2010 BCCA 421 (CanLII), the Court, after referring to the comments of Mr. Justice Rothstein in Pecore, noted that the effect of any presumption of resulting trust only will be requisite after all the evidence and the surrounding circumstances in which the transfer was made has been weighed and considered by the trial judge.

The Burkett decision set aside a transfer of land on the basis of resulting trust and undue influence.

In their Lordships» view, failure to rebut that presumption bars the operation of resulting trust — which is also itself a form of presumption.

The underlying principles of resulting trust law also make it hard to accommodate situations in which the contribution made by the claimant was not in the form of property or closely linked to its acquisition.

Until recently there had been some questions in BC estate litigation as to whether or not the presumption of resulting trust applies to gratuitous transfers of real property, in light of the provisions of the Land Title Act, section 31 that provides that under the... Read more

Because if purchase funds come from somebody other than the prospective owner, the doctrine of resulting trust presumes that, regardless of who is... Read More»

This traditional type of resulting trust has no application here as Fred is not asking the court to return an asset to him that he transferred to Al..

However it is open to a party claiming the transfer is a gift to rebut the presumption of a resulting trust by providing evidence to that effect: Pecore v. Pecore...

(c) gifts from parents to independent adult children are not presumed to be gifts; rather the presumption of a resulting trust applies...

This is called the presumption of resulting trust.

Did the judge err in finding the presumption of undue influence and the presumption of resulting trust had not been rebutted?

Presumptions of Resulting Trust The deceased's mother died intestate.

What the trial judge got wrong, the Court of Appeal found, was her finding that Helen had rebutted the presumption of resulting trust.

A recent decision of Ontario's Court of Appeal, Mroz v. Mroz, considered the doctrine of resulting trust.

The presumption of resulting trust had NOT been rebutted on these facts, the Court of Appeal held, with the result that the house continued to be beneficially owned by Kay and then by Kay's estate.

If the recipient child claims that the house is his alone, he must «rebut the presumption of resulting trust».

Dhaliwal v Ollek 2012 BCCA 86 discusses rebutting of the presumption of a resulting trust, and upholds that the recipient done bears the onus of proof, on the balance of probabilities, to rebut the presumption of a trust and to attempt to prove a gift....

[77] In Beaverstock, the Court held that the trial judge had erred in law by failing to begin his analysis with the presumption of resulting trust and in failing to make a finding concerning the appellant's actual intention when she advanced the funds to her son.

That is, if there is evidence that shows that the intention of the transaction was to provide a gift then the presumption of resulting trust has been rebutted.

Todays blog centres around the plaintiff's two other two arguments, that of resulting trust and constructive trust, and why each of those claims also failed.

D appealed but the appeal was dismissed holding that the trial judge did not introduce new test or place additional onus on D in determining whether presumption of resulting trust was rebutted, but rather, looked at evidence from common sense perspective

[78] In Savost» Yanova v. Chui, 2015 BCSC 516, where the husband's father had advanced $ 60,000 to assist with the purchase of the matrimonial home, Mr. Justice Weatherill held that in determining the intent of the person of who advances money in a family context, the court must weigh all of the evidence to determine whether the presumption of resulting trust has been rebutted: Chui at para. 77.