Emiel Van De Keere had five children, Joseph, Robert , Gene, Irene and Diane. He died on January 18, 2008 with an estate valued at approximately $ 32,000. He left a will leaving his estate to his five children equally. Between 2003 and 2007, the deceased transferred approximately $ 400,000 into the bank accounts of Diane and her husband.
Diane took position that the transfer of the funds represented gifts to her from her father. Her siblings held that the assets were being held on a resulting trust and formed part of the property of the deceased’s estate. In addition to these cash transfers, Diane’s siblings claimed that a camper van given to Diane by the deceased during his lifetime was also subject to a resulting trust and should be included in the assets of the deceased’s estate.
Diane’s siblings took her to Court.
The trial judge referred to the leading 2007 decision of the Supreme Court of Canada in Pecore v. Pecore where the Court ruled that the law presumes a resulting trust when a gratuitous transfer is made from a parent to an adult child. In Pecore, the Supreme Court held that where such a transfer is made and is challenged, the onus is on the recipient of the disputed gift to prove on a balance of probabilities that a gift was intended.
While the trial judge stated that he had difficulty with the testimony of the witnesses from both sides of the dispute, he was mindful that the evidence had to be examined with care, even with suspicion when an adult child is alleging that the transfer of property is a gift.
As evidence of intention, the judge looked to the last 2 wills made by the deceased in 1983 and 2000 in which he showed an intention to treat his children equally. He ruled that a gift of over 90% of the father’s net worth to one child was inconsistent with this intention. The judge accordingly ruled that the $ 400,000.00 given to Diane and her husband belonged to the estate and had to be shared with her siblings. As for the camper, the judge ruled that it was a gift, as there was evidence by way of Retail Sales Tax exemptions documents that indicated the vehicle was transferred as a gift.
If a parent intends to make a gift, clear evidence of intention such as a written declaration of intent is helpful to determine the issue. The donor parent should obtain independent legal advice to establish that the parent has capacity to make the gift and is not being unduly influenced.
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