Sentences with phrase «presumption of resulting trust»

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.

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

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.

This is called the presumption 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.

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.

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.

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

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.

(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...

[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.

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

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

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...

'' The law states that, where a parent makes a gratuitous transfer of assets to an adult child, there is a presumption of a resulting trust, such that the child is presumed not to be the beneficial owner, but rather to hold the assets as a trustee for the parent.

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).

Evidence of dependence by the transferee on the deceased would be considered as strong evidence to rebut the presumption of resulting trust.

The presumption of resulting trust may be rebutted by declarations made by the deceased at or before the date of transaction, or by the surrounding circumstances.

Evidence about the relationship between the transferee and the deceased can be used to rebut the presumption of resulting trust.

Evidence subsequent to the transfer is often considered in rebutting the presumption of resulting trust, although it is reviewed with caution.

The judge commences the inquiry with the presumption of a resulting trust, weighs all of the evidence, and attempts to ascertain the actual intention of the transferor.

The fact that the governing presumption at law is the presumption of resulting trust, and not the presumption of a gift however, has direct implications as to how and whether the case can be settled given the litigation risk of taking these actions to trial..

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.

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.

[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.

If the evidence is insufficient to establish actual intent, the trial judge may rely on the presumption of resulting trust: see Fuller v. Harper, 2010 BCCA 421 at para. 42:

However, if the court can not conclude the transferor's actual intent was to create joint tenancy on the evidence before it, this presumption will «tip the scales» in favour of the presumption of resulting trust: Schouten Estate at para. 2.

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.

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

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 University of British Columbia is alleging that the transfer of the house was gratuitous and as such the presumption of resulting trust, or in other words, the presumption that the transfer was not a gift, applies to the transfer.