What is the legal effect when a parent adds only some of their children as joint tenants on title to a property?

This issue arises frequently in estate litigation. Disputes often occur when one child is added to the title of a parent’s property or a bank account as a joint tenant with right of survivorship, while their siblings are not. These cases turn on whether the parent intended the asset to pass to the named child directly, or whether the child was instead holding the property ‘in trust’ for the parent’s estate.

The distinction is important. If an asset passes by survivorship, it falls outside the estate and is not distributed under a will/intestacy (and may avoid wills variation claims).

Where an adult child is added to title gratuitously, the law presumes they hold the beneficial interest for the parent during life and for the parent’s estate on death. However, this presumption can be rebutted if the evidence shows the parent intended a gift, including a gift of the right of survivorship.

The B.C. Supreme Court recently considered this scenario and the applicable legal principles in Rodrigues v. Berlinguette, 2026 BCSC 671.

Background

The dispute concerned five siblings and their late mother’s home.

Marlene Berlinguette purchased the subject property in 1992. Her son Albert (a plaintiff) was added to title as a tenant in common to assist with mortgage qualification.

In 2008, Albert was removed from title (with his consent) due to concerns about tax debt and potential creditor enforcement. Marlene obtained a new mortgage and added three of her children – the defendants, Kellie, Lorne, and Rene – onto title as joint tenants. The defendant children were also co-signors on the mortgage.

While the defendants resided with Marlene in 2008, they did not pay for their registered interests in the property. Marlene paid the mortgage, property taxes, and major expenses. The defendant’s contributions to household costs were occasional and limited. All the defendant children viewed the property as their mother’s home.

Over the years, Marlene consistently expressed that any child (or grandchild) of hers who needed a home would always have a place to live with her. By 2008, the plaintiffs, Albert and Cherie, had stable homes and spouses, while the defendant children remained with their mother.

Marlene died intestate in 2017. The defendants remained in the property for several years following her death. It was later sold in the context of civil forfeiture proceedings arising from Rene’s criminal conduct. The proceeds were ultimately used by Kellie and Lorne to purchase a home in Harrison in their names alone.

The plaintiffs claimed the property (and its proceeds) belonged to the estate under a resulting trust. The defendants claimed it passed to them by survivorship.

The Law

The governing authority in this area is the Supreme Court of Canada decision of Pecore v. Pecore, 2007 SCC 17 .

In Pecore, the Court held that where a parent gratuitously transfers property to an adult child in joint tenancy, the law will presume a resulting trust in favor of that parent and their estate upon death.

To rebut the presumption of a resulting trust, the adult child bears the burden of proving a gift was intended on the balance of probabilities. The relevant period for determining the parent’s intention is at the time of transfer (and not death).

Pecore recognized three possible situations involving jointly held property between a parent and an adult child:

• a true joint tenancy, where both parties share legal and beneficial ownership;
• a resulting trust, where the adult child holds legal title only, while the beneficial interest remains with the parent or the parent’s estate; or
• a gift of the right of survivorship, where the parent keeps beneficial ownership during their lifetime but intends the surviving joint tenant child to receive the property outright upon death.

Courts consider all relevant direct and circumstantial evidence of intention surrounding the circumstances of the transfer. If the actual intention of the parent cannot be determined, then the presumption of resulting trust is applied and resolves the uncertainty in favour of the estate.

Application to the Case

The Court found the 2008 transfer was gratuitous. The defendants did not contribute to the purchase and despite co-signing the mortgage did not assume meaningful financial risk.

The Court nevertheless held the presumption of resulting trust was rebutted.

The evidence showed Marlene’s overriding concern was ensuring her children would have a home if they needed it. In 2008, Albert and Cherie were established in their own homes, while the defendant children continued living with her.

The Court accepted that Marlene deliberately structured ownership as a joint tenancy both to protect the property from creditor claims and to ensure Kellie, Lorne, and Rene would receive the home by right of survivorship.

The Court noted that Rene brought no credit, income, or assets to support the mortgage. It found the only rational explanation for Marlene placing him (and Kellie and Lorne) on title was to ensure a place to live after her death.

The Court found Marlene intended to retain beneficial ownership during her lifetime, while gifting the right of survivorship to the defendants.

The action was dismissed, and the property did not form part of the estate.

Key Takeaways

• Joint tenancy alone does not determine beneficial ownership of an asset – gratuitous transfers from parents to adult children trigger the presumption of resulting trust.
• The adult child bears the burden of proving a gift or gift of survivorship was intended at the time of transfer.
• The law recognizes that a parent can retain beneficial ownership during their lifetime while simultaneously gifting a right of survivorship to their child.

 

In British Columbia, individuals often take steps to move assets outside of their estate during their lifetime as part of their estate plan.  There are various reasons why this is done: to ensure their wishes are fulfilled, to avoid potential wills variations claims, to minimize probate fees, or to seek more preferential tax outcomes for their families. There are several ways people can move assets outside of their estates – including through the making of gifts during their lifetimes, called inter-vivos gifts.

But what happens when someone has made a gift of a significant asset and later changes their mind? Can a demand be made that a gift be returned?

This issue was recently considered by the B.C. Supreme Court in Satguru Ram Singh Satsang Charitable Foundation v. Akalirai, 2026 BCSC 717 (“Satguru”).

Background

In 2018, Ms. Akalirai executed a deed of gift transferring her interest in her Vancouver home to the Satguru Ram Singh Satsang Charitable Foundation (the “Foundation”), a registered charity and society. The Foundation was associated with a temple of which Ms. Akalirai was a frequent attendee. Under the terms of the transfer, Ms. Akalirai retained the right to reside in her home for her lifetime. She was 86 years old at the time of the transfer.

In 2019, Ms. Akalirai received a charitable donation receipt in the amount of $1,625,000.

In 2021, Ms. Akalirai requested that the Foundation return the interest in the property to her.

The Foundation brought a petition to the B.C. Supreme Court seeking declarations from the Court regarding whether there was any legal basis for return of the property.

The evidence before the Court consisted primarily of affidavit evidence which gave conflicting versions of events.

Ms. Akalirai alleged that the donation was made under duress and the gift was invalid. She claimed that though she felt a spiritual need to donate, she had been pressured into the transfer by her son-in-law, whom she alleged had close ties to the Foundation. She gave evidence that she was emotionally vulnerable at the time, struggling following the murder of her grandson, and that she did not fully understand the legal implications of the documents she signed.

The evidence of the other witnesses sharply contradicted her account.

Ms. Akalirai’s daughter gave evidence that her husband (who had passed away prior to the petition) had no involvement in Ms. Akalirai’s financial or legal affairs and no involvement in the decision to donate the property. He was not affiliated with the Foundation and attended a different temple altogether.

The Director of the Foundation at the relevant time also gave evidence that Ms. Akalirai herself initiated discussions regarding donating her home and that he encouraged her to carefully consider the decision and obtain independent legal advice before proceeding. Independent legal advice was ultimately obtained, and the lawyer who advised Ms. Akalirai provided a certificate confirming the same.

Inter Vivos Gifts and Duress

To establish a valid inter vivos gift:

1. The donor must have an intention to donate – intention must be present at the time of the transfer;
2. The donee must accept the gift; and
3. There must be sufficient delivery of the gift by the donor to the donee.

A donor must possess the legal capacity to make the gift. The capacity required to make an inter vivos gift is generally less stringent than that for testamentary capacity. A valid gift must also be free from duress and undue influence. I’ve written recently on undue influence – here.

Allegations of duress must be proven by the party asserting them. As stated by the Court in Satguru “(d)uress normally involves a threat of an unlawful or illegal action made to compel the innocent party to enter the contract”; it involves coercion that ‘vitiates’ consent.

Once a gift is completed (and is not invalid, including for the reasons above) it is final and cannot be retracted, nor can a donor later dictate how the property is to be used. A donor may only retain the ability to later alter the terms of a gift or impose future directions if those rights are expressly reserved at the time the gift is made.

In other words, a donor cannot later change the terms of the gift or seek its return simply because they regret their decision.

Application to the Case

The Court preferred the evidence of Ms. Akalirai’s daughter and the Director of the Foundation.

Ms. Akalirai failed to establish that she had made the gift of her home to the Foundation under duress. While Ms. Akalirai regretted her decision to gift her home, regret alone was insufficient to invalidate an otherwise valid inter vivos gift.  The Foundation was under no obligation to return the property.

Takeaways

This decision serves as an important reminder that a validly completed inter vivos gift is irrevocable.

Individuals considering transferring significant assets as gifts during their lifetime — particularly real property — should carefully consider the legal consequences before doing so. Once the essential elements of a gift are satisfied (and absent duress, undue influence, lack of capacity etc, or expressly reserved rights) a donor will not be permitted to later reclaim the property or change the terms, simply because they have changed their mind or their circumstances have changed.

 

You may have recently seen coverage of the decision of the B.C. Supreme Court in Beckman v. Vinci et al., 2026 BCSC 559 – it was reported on by CTV News and the National Post. The facts are striking, but the case is also a useful illustration of gratuitous transfers, the presumption of resulting trust, and undue influence – all concepts that come up regularly in estate litigation in British Columbia.

Background

Doug Beckman is a successful Kelowna entrepreneur living with Huntington’s disease; a progressive, incurable neurological disease that causes both motor and cognitive impairment, including progressive dementia and resulting difficulties with judgment, planning, impulse control, decision-making, and insight.

By 2017, the cognitive effects of Mr. Beckman’s condition were apparent to those close to him. Friends, advisors, and his CFO encouraged him to obtain additional support. The defendant, Karen Vinci, was hired as his personal assistant at $5,000 per month to assist with errands, daily tasks, and companionship. At the outset, the evidence at trial established that she was informed about Mr. Beckman’s condition, its cognitive effects, and cautioned not to accept significant financial benefits.

The Court found that the relationship between Mr. Beckman and Ms. Vinci became “more social than professional” almost immediately. Within a month, Mr. Beckman became infatuated and repeatedly told her he loved her. They spent significant time together – travelling (including multiple trips to Maui), dining, and shopping, often in circumstances where alcohol was involved. There was evidence that Ms. Vinci commented that Mr. Beckman was easier to manage when drinking.

During the COVID-19 period, Ms. Vinci and her family became Mr. Beckman’s primary social circle; he rarely saw his own children. Against that backdrop, financial transfers began.

Between April 2020 and April 2022, Mr. Beckman transferred approximately $5.1 million to the defendants. The funds were used to purchase multiple properties in Kelowna (and one in Ottawa) in the names of Ms. Vinci and her family members, and to fund extensive renovations of Ms. Vinci’s residence. Despite being advised by her ex-husband to document any gifts — and having draft gift letters prepared — Ms. Vinci never asked Mr. Beckman to sign them.

The Court found that Mr. Beckman’s friends, advisors, and CFO were intentionally kept unaware of the transfers.

When one transaction — the Ottawa condominium — came to light in 2021, the CFO warned Ms. Vinci that accepting such a transfer was a serious breach given Mr. Beckman’s vulnerability and directed that the property be transferred to Mr. Beckman’s holding company. Ms. Vinci agreed, but did not follow through and did not disclose the other transfers.

One witness testified that Ms. Vinci told her that she planned to work for Mr. Beckman for a limited period so that she and her family would be financially “set up.”

Ms. Vinci’s employment was terminated for cause in April 2022, after Mr. Beckman said he realized he was missing millions, and when Ms. Vinci was seeking an additional $1.7 million.

Mr. Beckman commenced an action to recover the transferred funds. Ms. Vinci counterclaimed for wrongful termination, and for sexual assault and battery.

Were the Transfers Loans?

Mr. Beckman argued that the transfers were undocumented loans — “handshake deals.” The Court rejected that argument. There was no evidence of any loan agreements and no circumstantial evidence supporting such an arrangement (such as documentation, security, or repayment). The alleged arrangement was also commercially implausible — it made little sense to loan millions of dollars to a person earning approximately $60,000 per year.

The Presumption of Resulting Trust

I have written previously on this topic. Where a transfer is made gratuitously, the presumption of resulting trust arises: the law presumes that the recipient holds the property in trust for the transferor unless the recipient can show, on a balance of probabilities, that a gift was intended at the time of the transfer and the transferor had capacity to make a gift.

In considering whether the presumption had been rebutted, the Court had serious concerns about the credibility and reliability of the defendants’ evidence, and outright rejected Ms. Vinci’s evidence where it was not corroborated by reliable evidence. The defendants relied largely on their own testimony that Mr. Beckman was cognitively sharp and unimpaired — despite evidence to the contrary — as well as limited documentation, including references to “gifts” in text messages.

The absence of signed gift letters — particularly where they had been prepared and Ms. Vinci had been advised to obtain them — was significant to the Court, which inferred that Ms. Vinci did not pursue them because she believed Mr. Beckman would not sign. The Court also found it implausible that an employer would gift more than $5 million to an employee of less than four years.

The presumption of resulting trust was not rebutted.

Undue Influence

In the alternative, the Court concluded that if the transfers were gifts, they would be set aside for undue influence.

I have written previously on this topic. Undue influence is an equitable doctrine used to protect persons from victimization. It focuses on the relationship between the parties — specifically, whether one party is in a position to dominate the will of another, meaning that they are in a position “to exercise a persuasive influence.” Where that potential is established, undue influence is presumed and the burden shifts to the recipient to show the transfer was the result of a full, free, and informed decision.

The hallmarks of undue influence are vulnerability and dependence; medical incapacity is not required.

In assessing whether a transfer was the product of a free decision, courts may consider factors such as the opportunity to exercise influence, whether independent advice was obtained, the donor’s ability to resist influence, their understanding of the transaction, and the magnitude of the benefit conferred.

The Court found that Ms. Vinci “was in a position to dominate Doug’s will” and concluded that she saw him as an opportunity to improve her family’s financial position. That finding is consistent with the broader evidence at trial regarding how she approached the relationship and the benefits she sought to obtain from it.

The presumption of undue influence applied and was not rebutted.

Other Claims

Ms. Vinci’s wrongful dismissal claim was dismissed. The Court found that she had been properly terminated for cause.

A claim for sexual assault succeeded in part, with damages assessed at $15,000.

Takeaways

This decision is a straightforward but important application of established principles:

• Where transfers are gratuitous, the presumption of resulting trust will apply. The burden is on the recipient to prove donative intent — and that requires clear evidence. Documentation matters. The absence of signed gift letters, particularly where they were contemplated, can be a significant factor.
• Where a vulnerable person is involved, context is critical to the undue influence analysis. Lack of independent advice, secrecy, and the scale of the transfers will all be important considerations.
• Beckman is a clear example of the type of fact pattern that engages – and demonstrates the reasons for – the operation of these equitable presumptions.

 

What happens when a beneficiary survives a will-maker but dies before the estate is distributed? Does their share pass to their own estate – or fall back into the residue?

In estate litigation, timing can determine entitlement. If a beneficiary dies before distribution, whether their interest survives them depends on vesting. In Lewis v. Jack, 2026 BCCA 18, the British Columbia Court of Appeal reaffirmed that the law favours early vesting – immediately upon a will-maker’s death – and that only clear and unequivocal language will rebut that presumption.

Background

Kenneth Jack died in 2018 leaving a will that bequeathed his property and directed his executor to liquidate the estate, pay debts, and divide the residue “then remaining” equally among his children “then alive.” Mr. Jack’s two sons, Travis and Jason, survived him. Travis was named executor.

The estate’s principal asset—a ranch property—was not sold after Mr. Jack’s death and continued to be operated by his two sons. Jason died in 2023. Jason’s estate asserted that his interest in his father’s estate, including the ranch, had vested at the time of Mr. Jack’s death. Travis, in his capacity as executor, argued that under the language of the will Jason’s interest vested only upon distribution and was therefore forfeited because he died before that time.

The chambers judge accepted the executor’s position, holding that the sequential directions to the executor and the words “then remaining” and “then alive” reflected Mr. Jack’s intention to rebut the presumption of early vesting – with the result that Jason was disinherited.  The Court of Appeal allowed the appeal and overturned this result.

The Presumption of Early Vesting

Madam Justice Fisher, writing for a unanimous Court, emphasized that the presumption of early vesting is a long-standing principle of will construction grounded in certainty and fairness. Absent a clearly expressed and unambiguous contrary intention, testamentary gifts are presumed to vest at the time of the testator’s death, even where payment or distribution may be postponed.

The Court reviewed over two centuries of authority confirming that:

• Postponement of distribution for administrative convenience does not defer vesting;
• The presumption applies equally to gifts to named beneficiaries and to classes;
• Courts are reluctant to interpret wills in a manner that allows executors, through delay or discretion, to control when—or whether—vesting occurs.

As the Court observed, the law has consistently resisted interpretations that make beneficiaries’ rights depend on “the caprice or dilatoriness” of executors.

Analysis

The Court of Appeal allowed the appeal and declared that the residue of Mr. Jack’s estate vested in equal shares in his sons as of the date of his death. Jason’s interest was not divested by his subsequent death before distribution.

The Court held that the chambers judge had erred in interpreting the will. The subclause directing the executor to divide and distribute the residue to the children “then alive,” had to be read in the context of the clause as a whole and the will as a whole. Properly construed, the will did not express an intention to postpone vesting until the time of distribution.

Significantly, the chambers judge had acknowledged that postponed vesting was not the only reasonable interpretation of the clause. The Court of Appeal held that this alone engaged the presumption of early vesting: where language is capable of more than one reasonable interpretation, a court cannot infer an intention to postpone.

Takeaways

• Lewis is a reminder that delayed vesting conditions must be drafted, not implied. If a will-maker intends a beneficiary to survive to distribution, the will must say so in unmistakable terms. Ambiguity will be resolved in favour of early vesting.
• Courts remain reluctant to interpret wills in a manner that leaves vesting of interest to the timing or discretion of an executor.

What happens when a spouse dies without a will, the family home is the only estate asset, and the surviving spouse cannot afford to buy out the children’s interests under the intestacy scheme?

In Re Boisvert Estate, 2026 BCSC 195, the British Columbia Supreme Court considered, for the first time, an application under s. 33 of the Wills, Estate and Succession Act (“WESA”). The decision is noteworthy not only because it fills a jurisprudential gap, but because it offers meaningful guidance on how courts are expected to exercise the broad discretion built into sections 31–35 of WESA.

Background

Mr. Amies and the deceased, Ms. Boisvert, lived together in a marriage-like relationship for approximately 25 years in a home owned solely by Ms. Boisvert in Smithers, B.C. Ms. Boisvert died intestate in 2022. Her estate consisted almost entirely of the Smithers home, valued at approximately $600,000.

Ms. Boisvert had two adult children from a prior relationship.

Following Ms. Boisvert’s death, Mr. Amies continued to live in the spousal home and in 2025 brought an application under s. 33 of WESA seeking an order vesting the home in his name. The application was opposed by the deceased’s daughter, Ms. Goddard, who was also the administrator of the estate.

At the time of the application, Mr. Amies was 62 years old. The evidence established that he was a man of modest means, earning approximately $20,000 per year, and holding an RRSP of roughly $100,000. The Court accepted that he and Ms. Boisvert had not been financially well off, that Mr. Amies had been a loyal partner, providing financial and health support to Ms. Boisvert for many years.

The Statutory Context

Where a person dies intestate leaving a surviving spouse and descendant children Part 3 of WESA governs the distribution of the estate.  Section 21(1) provides that the surviving spouse is entitled to a preferential share of $150,000, plus 50% of the residue of the estate, with the remaining residue divided equally among the descendant children.

Where the estate includes a spousal home, s. 27 permits the surviving spouse to purchase the interests of the descendants in that home, subject to court approval where agreement cannot be reached.

Sections 31 to 35, and in particular s. 33, create an alternative mechanism where a purchase under s. 27 may not be feasible. Section 33 authorizes the court to make an order where certain criteria are satisfied, namely:

• the spouse was ordinarily resident in the home;
• the estate assets are insufficient to satisfy the interests of both the spouse and the descendants without a sale of the home;
• the spouse would suffer significant financial hardship if required to purchase the descendants’ interests;
• there is a greater prejudice imposed on the surviving spouse in being unable to reside in the home then on the descendants in having to wait for their share of the estate; and
• the spouse had resided in the home and/or community for a sufficient period of time to ‘establish a connection’

If a spouse meets the above criteria a court can make a number of specified orders subject to any terms or conditions it considers appropriate:

• Vesting order – the court can vest the deceased’s interest in the spousal home in the surviving spouse giving them technical ownership;
• Specify the amount of money a surviving spouse must pay descendants for their interest in the estate;
• Convert any underpaid interest of the descendants into a registrable charge against title to the surviving spouse’ interest in the property;
• Determine an interest rate the descendants are entitled to for their registrable charge;
• Determine the value of the charge to include the principal amount owing and the expected value of the future interest that will be earned from the court setting an interest rate on the registrable charge.

In short: the court can let the spouse keep the home while ensuring descendants still have a secured claim for their share.

Where an order is made under s. 33, ss. 34 and 35 permit the court to convert the descendants’ interests into a registrable charge against the property, enforceable as if the descendants were mortgagees, and payable on terms fixed by the court.

Statutory Interpretation and Novelty

Section 33 of WESA has not previously been considered by a British Columbia court, and the Court in Boisvert noted that there is no equivalent provision elsewhere in Canada. Under previous wills and estates legislation (the Estate Administration Act) a surviving spouse was granted a life estate in a spousal home by default. WESA replaced that regime with a discretionary scheme that requires the Court to balance competing interests of spouses and descendant beneficiaries (particularly children).

In the absence of precedent, the Court turned to purposive interpretation. The Court relied on Ministry of Justice materials explaining the relevant provisions of WESA and on Hansard to understand the legislative intent behind s. 33. While recognizing the limited weight of such sources, the Court concluded that the legislature deliberately moved away from automatic life estates in favour of a flexible, court-supervised balancing exercise. The legislature through WESA was recognizing a surviving spouse’s potential need to remain in a home while protecting descendants’ inheritances. Permitting a registrable charge allowed descendants’ a secured financial interest and the section gave courts the flexibility needed to balance their rights with spousal hardship.

The Balancing Exercise

Applying s. 21 of WESA, the Court found that Mr. Amies’ intestate entitlement was $375,000, while each child was entitled to $112,500. The estate could not satisfy these interests without selling the home.

The Court held that Mr. Amies met the statutory criteria under s. 33. Mr. Amies was not required to exhaust his RRSPs to remain in the home, consistent with the legislative intent reflected in the WESA materials

The Court ordered that the estate’s interest in the home be vested in Mr. Amies, subject to a registrable charge in favour of the children for $225,000, accruing interest under the Court Order Interest Act. The charge was structured to become payable on the earliest of several triggering events, including 24 months from judgment, 12 months Mr. Amies’ death, 12 months from Mr. Amies ceasing to reside at the property, or immediately upon sale of the property.

The 24-month grace period is particularly significant. It reflects the Court’s view that s. 33 permits tailored remedies, including delayed enforceability, rather than immediate realization by descendants.

Why This Decision Matters

Boisvert confirms that s. 33 is not an exceptional or theoretical provision—it is a practical tool intended to be used. The decision provides a roadmap for future cases: courts will engage in a fact-specific balancing exercise, rely on purposive interpretation, and craft bespoke remedies that protect both the surviving spouse and the descendants’ financial interests.

For practitioners, the case underscores that s. 33 applications are not all-or-nothing propositions. The real work lies in how the charge is structured—and Boisvert makes clear that courts are prepared to be creative.

 

What duties does a notary (or lawyer) have when witnessing a signature on a document, such as a land transfer document, to ensure that the person signing the document understands that document and is voluntarily signing it? What if you are only retaining this person for the limited purpose of witnessing your signature because the document must be notarized?

In Engman v. Canfield 2023 BCCA 56, a notary witnessed a signature on a Form A Transfer document, which transferred her 20-acre property to a third party. The notary only witnessed the signature (and was paid $50 for his services). It turned out that the transfer was part of an unconscionable purchase and sale agreement, and the transferor was “situationally vulnerable” when she signed the document. She was elderly, had health problems, and was feeling pressure to sell. She was also deprived of important information when she agreed to the sale, and the agreement was the product of unequal bargaining power and was an improvident bargain. However, the notary was not aware of any of this.

When the transferor was not paid for her property, she brought a claim against various defendants, including the notary (who she sued for negligence). At trial, the notary was held liable for $465,000 in damages, which was the fair market value of the property at the time of the transfer.

At trial, the Court found that the notary owed the transferor a duty to act with reasonable care when he witnessed her signature, and he breached that duty by not inquiring into the transferor’s capacity, her understanding of the form, the voluntariness of the transfer, or that she received independent legal advice.

The B.C. Court of Appeal allowed the appeal, and dismissed the action in negligence against the notary.

The notary argued that he was merely an “officer” witnessing a signature on a Land Title transfer form, and so he had very narrow responsibilities to confirm the identity of the person signing the form and confirm this was the person named in the form, and witness that person’s signature on the document.

The Court of Appeal did not accept this. The notary was acting in his role as a notary public, and there are standards established for his profession, including urging unrepresented persons to obtain independent legal advice, and if they fail to do so taking care to make sure the person is not under the impression that their interests would be protected by the notary. The Court of Appeal held that the Land Title Act and the notary’s professional guidelines required him to go beyond confirming the identity of the signatory and the fact that the signature on the document belongs to that person. For example, the guidelines provide that notaries should make sure the signature is given voluntarily, and the signatory is aware of the significance of the transaction.

The Court of Appeal upheld the finding of the trial judge that the notary breached his standard of care. However, the Court of Appeal allowed the appeal of the finding of causation. The trial judge found that had the notary insisted that the transferor receive legal advice before he witnessed the form (which he was supposed to do), she would have avoided the loss. The notary argued that this was conjecture, and that the loss would have been suffered in any event.

A defendant is not liable in negligence unless their breach caused the plaintiff’s loss. In some cases, causation can be established by inference, but it cannot be guesswork or conjecture. The Court of Appeal held that there were too many unknowns about what would have happened if the notary had met the standard of care, and that the transferor failed to establish on a balance of probabilities that had the notary made in proper inquiries and declined to witness the Form A because of the responses, the transferor would have acted in a different manner. The other evidence in the case showed that the transferor had capacity, and was not interested in seeking legal advice about the inherent risks.

The appeal was allowed that the claim in negligence against the notary was dismissed.

If there are suspicions transfers during the deceased’s lifetime, these can be scrutinized and investigated after the death of the deceased. A personal representative ought to consider whether any large transfers should to be challenged, on the basis that a gift was not intended, or that the transfer is otherwise invalid (i.e. due to undue influence, lack of capacity).

In Schwab Estate v. Warriner 2023 BCSC 220, the deceased died from a fentanyl overdose at the age of 47. He had two children, aged 11 and 9. The deceased did not leave a will.

There was a dispute as to whether the defendant was living in a marriage-like relationship such that she was a “spouse” of the deceased. If she was a spouse, she would get a share of the estate under an intestacy. If she was not a spouse, then the children would get the entirety of the estate. It was held that the defendant was not a spouse. This is a highly fact-specific inquiry. I discuss the issue of consideration of spousal status in other posts, for example here.

The second issue in Schwab Estate related to a transfer of $350,000 from the deceased to the defendant four days before his death. The deceased sold his home five weeks before he died, received $800,000 from the sale, and provided a $350,000 bank draft to the defendant.

The defendant argued that the deceased owed her money, and the $350,000 draft was to pay her back. She said that the deceased owed her money for being the primary bread-winner for the years they were together. She gave evidence that there was an agreement between her and the deceased about the approximate amount of the debt and what he was to repay to her.

The court rejected this claim. The Court did not accept the defendant’s testimony, and the documents (in particular bank records) did not assist with her position. There was no evidence of an agreement to pay, and there was no evidence that the amount that would have been payable was $350,000. The Court relied upon the testimony of a witness who described a conversation which suggested that the deceased did not consider that he owed the defendant any money. The bank records also showed that the deceased attended to payment of other debts that he discussed with other parties (including a debt to his drug dealer).

As a result, the transfer was gratuitous and the presumption of resulting trust applied. The defendant failed to establish that the deceased intended to gift her the funds. The evidence was that the deceased intended to gift the funds, potentially with the deceased’s brother. There was also evidence that the deceased intended to shield the monies from the mother of his children.

The Court also held that the transfer was procured by undue influence. The deceased did not transfer the $350,000 of his own full, free and informed thought. The deceased was vulnerable as a result of his ongoing drug addiction, health condition, and paranoia about the mother of his children.

The funds had been spent without an accounting, and so they could not be simply returned. Instead, the court awarded the deceased’s estate damages in the amount of $350,000. The Court also awarded punitive damages in the amount of $50,000, for using her position for her own profit, and spending all of the money with no accounting.

I have previously discussed that gifts are irrevocable, and so a donor cannot change their mind and seek to take back property that they have gifted. However, the Court may set aside a gratuitous transfer if it was procured by undue influence, whether that be intentional influence or unintentional influence.

In Sandu v. Sandu 2023 BCSC 323, the Court considered the transfer of property in 2016 from a husband and wife to their youngest son. The property was the parents’ only substantial asset. The transfer was purportedly a gift, and no consideration was paid by the son. The parents later requested that their son transfer title to the property back into their names, and he refused to do so.

In this case, the Court ordered that the transfer be set aside, and title be restored to the parents.

At the time of the transfer, the father was 91 years old and the mother was 88 years old. Neither of them received any formal education, neither of them spoke or read English, and both of them were functionally illiterate in their mother tongue of Punjabi. They had always been completely dependent on family members for assistance with written transactions. In fact, their eldest son was appointed as their litigation guardian for the trial of the action.

Equity presumes bargains over gifts. Where property is transferred to another without consideration, the presumption of resulting trust applies. The onus is on the transferee to rebut the presumption by demonstrating that a gift was intended.

In B.C., section 23(2) of the Land Title Act provides for a statutory presumption of indefeasibility – the idea that registration of title is conclusive evidence at law and in equity that the person named on title is indefeasibly entitled to an estate in fee simple in the land. In other words, the registered owner is presumed to be the true beneficial owner of the property.

However, the presumption of indefeasibility can be rebutted, including by the existence of a resulting trust, and also if the registered owner took their interest by the exercise of undue influence. There can be no gift where the transfer was made under undue influence.

There are two branches of undue influence for inter vivos transfers:

1. intentional or actual undue influence; and
2. unintentional or presumed influence.

The first branch is characterized by the influencer’s conduct, and may include:

• “overt and violent threats (give me the house or I’ll beat you…);
• “subtle forms of persuasion (give me the house or I don’t know if I’ll be able to look after you anymore…)”;
• persistent requests for the property ultimately disposed of; or
• exploitation of the donor’s desire to keep the family peace.

The second branch recognizes unintentional undue influence, which is to be presumed if:

• there is a “potential for domination” given the nature of the relationship between the parties (this includes solicitor/client, parent/child, and guardian/ward relationships);
• the defendant unduly benefited or the plaintiff was unduly disadvantaged, but only if the transaction is commercial.
• If the plaintiff establishes circumstances that trigger the presumption of undue influence, the defendant has the onus of rebutting it. To rebut the presumption, the defendant must show that the plaintiff entered into the transaction with full, free and informed thought.

The receipt of independent legal advice may be a critical factor.

In Sandu, the Court observed that in the context of intergenerational relationships involving care, undue influence is a particular concern.

The Court held that it did not need to determine whether their was actual undue influence (the first branch), as there was a presumption of undue influence (the second branch) which had not been rebutted. The Court considered whether the parents received independent legal advice, and determined that what limited advice they received did not constitute adequate legal advice. The mere presence of legal advice is insufficient.

Finally, the presence of undue influence meant that the limitation period to bring the claim had not expired. In cases of undue influence, the time does not begin to run to bring a claim until the donor can be said to have been freed from the sphere of undue influence. As a result, while more then two years had passed since the transfer, in effect the limitation period was extended while the parents remained under the influence of their son.

In B.C., a spouse or child (including an adult independent child) can bring an action to vary a will if they believe it does not make adequate provision for them. However, a wills variation claim can only seek a greater share of assets which form part of the estate. If assets pass outside of the estate, they are not available to claim against in a wills variation claim.

As a result, some will-makers take steps to deplete their estate so that there are no assets available for the purpose of a wills variation claim. This may include registering assets in joint ownership with right of survivorship, direct beneficiary designations, or inter vivos transfers (gifts during the will-maker’s lifetime).

Disappointed beneficiaries must first succeed in attacking these planning steps and “returning” the assets to the estate for the purpose of the wills variation claim. This may include claims that the assets are held in resulting trust for the estate, or claims attacking the validity of the transfers (lack of capacity, undue influence, etc…).

A recent example can be found in the B.C. Supreme Court decision in Franco v. Franco Estate 2023 BCSC 1015. In Franco, the deceased father took certain planning steps during his lifetime. He transferred property, proceeds of sale of property and monies from bank accounts to one of his children, and changed his will to leave the entirety of his estate to that child (and to name that child as executor). As a result, his other two children (the plaintiffs in the action) did not receive a share of the transferred assets, and were disinherited under the will. If the planning and transfers were upheld, it would mean that there would be very little in the estate available for a wills variation claim.

The defendant argued that her father validly gifted assets to her. There are two requirements for a legally binding gift:

1. the donor must have intended to make a gift and must have delivered the subject matter to the donee. The intention of the donor at the time of the transfer is the governing consideration.
2. The donor must have done everything necessary, according to the nature of the property, to transfer it to the donee and render the settlement legally binding on him or he

Where a parent makes a gratuitous transfer to an independent adult child (as was the case in Franco), the presumption of resulting trust applies. The transferee must prove on a balance of probabilities that the transferor intended the transfer as a gift.

The most compelling evidence is direct evidence of the transferor’s intention at the time of transfer. Post-transfer conduct may be relevant, but must be approached with caution as it may be self-serving (or show a change in intention).

The Court in Franco held that the fact that the deceased continued to deal with jointly-owned property unilaterally does not cause the gift to fail. Continuing control and use of the property by the transferor after the transfer is not necessarily inconsistent with a gift.

The Court held that documentary and affidavit evidence established an intention to gift. The evidence included transfer documents, a deed of gift document, bank account documents, and the affidavit evidence of the defendant, the deceased’s niece, and the deceased’s financial advisor.

The Court also found there was no undue influence.

As a result, the Court concluded that the gifts were valid, and the assets passed outside of the estate. The parties agreed that if the claim relating to the gifts failed, the wills variation claim would not be pursued (because there were insufficient assets in the estate to justify the action). Accordingly, the plaintiffs’ claims were dismissed.