Sentences with phrase «presumption of advancement»

This case is now going up to the BC Court of Appeal so you will need to stay tuned to see if any change in the law on presumption of advancement in BC occurs at the appeal court level.

However, controversy has arisen as to whether this seemly simple statement captures all gifts to a spouse such that the common law presumption of advancement no longer applies.

Our highly rated BC common law presumption of advancement lawyers continually monitor the latest trends in BC Family property division law.

Assuming your mother was the sole owner at the time of transfer, used the properties herself and paid the ongoing maintenance costs, case law may suggest that the presumption of advancement did not apply and you were technically holding half the properties in trust for your mother.

It would allow the presumption of advancement, an anachronistic legal principle, to continue in the context of legislation that was intended to recognize and reflect the broader and changed nature of relationships in present day society.

[185] If, however, I am mistaken in the foregoing conclusion and the presumption of advancement continues to have relevance under the FLA then Mr. F. did not, on the whole of the evidence, rebut the application of the presumption.

To the extent that the presumption of advancement is applied differently between traditional marriages, common law relationships, and same - sex marriages, the continued application of the presumption of advancement is incoherent with the legislative objective of putting all such unions or marriages on an equal footing.

[168] To the extent the FLA was intended to treat men and women as equal for the purposes of property division under the FLA, the continued application of the presumption of advancement, which only arises if the husband is the transferor and the wife the transferee does not cohere with the objects of the FLA..

In H.C.F. v. D.T.F., BC Supreme Court Justice Voith prepared a compelling argument for saying the presumption of advancement is dead in BC.

This enhanced foundation for a presumptive equal sharing of family property and debt is conceptually incompatible with the presumption of advancement.

[149] The ongoing application of the presumption of advancement under the FLA would mean that of these various potential forms of relationship, within which all partners are «spouses» for the purposes of the FLA, the only subset of relationship to which the presumption of advancement would apply would be a gift from a man to women in a traditional marriage.

[148] When considering the presumption of advancement — issues of property division and «excluded property» under the FLA — the intended equivalency of legal position and treatment, for different types of unions, is directly relevant.

[184] I have concluded that the presumption of advancement has no ongoing application under the FLA..

[172] The presumption of advancement's unequal treatment of men and women in traditional marriages and the unequal treatment of different kinds of unions or relationships suggests that the presumption of advancement ought not to apply within the FLA..

For the presumption of advancement to have continued life would create an «absurd» consequence.

The BC Court of Appeal released the seminal VJF case but a new BC Supreme Court decision points out that there are powerful legal interpretation reasons to exterminate the presumption of advancement in British Columbia.

An exception is the presumption of advancement (meaning a gift in advance of a person's death).

According to case law, the presumption of advancement applies to transfers of property from one spouse to both spouses, or from a parent to a minor child.

Nothing in the act hints at the existence of the presumption of advancement, never mind the presumptions of gift and resulting trust, or the doctrine of unjust enrichment and its equitable remedies.

On the other hand, Mr. Justice Masuhara, writing in Wells v Campbell, observed that the act fails to explicitly extinguish the presumption of advancement or otherwise alter the law on perfected inter vivos gifts, and applied the presumption.

(b) When the transferor's intent is unavailable or unpersuasive, the presumptions of advancement (a gift) and resulting trust are useful guides and will apply...

that the presumption of advancement no longer applies between adult children and their parents;

In layman's terms, the «presumption of advancement» is a legal principle that essentially states that a transfer of property from one spouse to another is a gift to the receiving spouse to be legally owned by the receiving spouse.

In addition, important evidentiary presumptions are highlighted, such as the presumption of advancement and the presumption of resulting trust.

In that case, MacIntosh J. set out the correct approach to the presumption of advancement analysis when property from one spouse is transferred from one spouse to another.

No presumption of advancement arises when one spouse's investment is put into a property that is jointly owned by that person: see Hu v. Li, 2016 BCSC 2131.

HCF v DTF 2017 BCSC 1226, a divorce case, traces the historical roots of the presumption of advancement and finds that it is an outmoded and «dead» legal principle in today's BC society.

The third child was intended to be the beneficiary of the trust of the share and, as regards the eldest two children, the judge had «overlooked the relevance and importance of the presumption of advancement».

Their Lordships held that the evidence was not admissible because the will post-dated the transfer of the shares and it is «well established that evidence to rebut the presumption of advancement can not take the form of denials of a transferee's beneficial ownership made by the transferor after the event».

Paul Hewitt, Paola Fudakowska & Adam Cloherty report on charitable gifts & the demise of the presumption of advancement