CED: An Overview of the Law

CED: An Overview of the Law Gifts Notes for III: Presumptions III.1: Acceptance FN1. Wilson v. Hicks (1910), 21 O.L.R. 623 (Ont. Div. Ct.); affirmed (...
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CED: An Overview of the Law Gifts Notes for III: Presumptions III.1: Acceptance FN1. Wilson v. Hicks (1910), 21 O.L.R. 623 (Ont. Div. Ct.); affirmed (1911), 23 O.L.R. 496 (Ont. C.A.); see also Falck v. Robison (1921), 20 O.W.N. 217; Sherratt v. Merchants Bank (1894), 1894 CarswellOnt 2 (Ont. C.A.); Dewar v. Dewar (1975), [1975] 2 All E.R. 728; Standing v. Bowring (1885), 31 Ch. D. 282 (Eng. C.A.). III.2: Purchase of Land in Name of Another FN1. Eldridge v. Royal Trust Co. (1923), 1923 CarswellAlta 113 (S.C.C.) (father purchasing land and taking transfer of land in son's name; transfer never delivered; gift valid); see also Cole v. Cole (1943), 1943 CarswellBC 73 (B.C. C.A.); affirmed (1944), 1944 CarswellBC 92 (S.C.C.); Pahara v. Pahara (1945), 1945 CarswellAlta 126 (S.C.C.); Kudlaciak v. Trela (1975), 1975 CarswellOnt 574 (Ont. H.C.) (retired labourer with little knowledge of English transferring assets to landlady's son-in-law when entering hospital; son-in-law looking after affairs of and accounting to transferor; presumption of resulting trust not rebutted); Nicholson v. Nicholson Estate (1994), 1994 CarswellOnt 664 (Ont. Gen. Div.) (mother transferring lots to children initially without their knowledge; some of lots sold with mother conducting negotiations, setting price and directing use of sale proceeds; manner of dealing with property proving resulting trust and not gift); Punisic v. LaValley (2005), 2005 CarswellOnt 2348 (Ont. S.C.J.) (plaintiff aunt purchasing home in name of defendant niece and her husband with expectation that they all would reside in home together; separate accommodations for plaintiff being requirement for purchase of home; plaintiff's intention being to live in premises and be cared for by defendants; plaintiff not surrendering control of item gifted; plaintiff making gift but not intending to confer absolute unconditional ownership of home on defendants; codicils to defendants' wills showing intention to protect plaintiff's interest; niece being aunt's fiduciary; fair-minded person would reasonably believe that plaintiff not wishing to lose entitlement to residence purchased with her own funds; presumption of advancement not overcoming any deficit of evidence needed to support gift); Ovans v. Ovans (2006), 2006 CarswellAlta 471 (Alta. Q.B.) (father unable to rebut presumption of advancement in favour of daughter so daughter found to be rightful owner of property; property would not have been purchased but for daughter's ability to finance purchase; father not entitled to rely on evidence of illegality to rebut presumption of advancement so fraudulent use of provincial program could not be considered; apparent common intention being for property to be used for benefit of family

CED: An Overview of the Law farm which is not dependent on legal ownership of property; daughter reasonable in concluding that property intended to be hers; daughter contributed labour for benefit of family farm; presumption could not be rebutted based on daughter's financial status as daughter always being financially dependent); Hamilton v. Hamilton (2004), 2004 CarswellOnt 5378 (Ont. S.C.J.) (son and father entering into partnership agreement where father retaining 60 per cent ownership of farm and transferring 40 per cent to son; revenues and net profits of business to be divided on equal basis; no portion of farm gifted to son; evidence surrounding transfer more consistent with business transaction than gift; word “gift” not appearing in any documentation relating to transaction; partnership agreement and equal division of income between parties could be construed as benefit and form of consideration to father). FN2. McDougall v. Paille (1913), 1913 CarswellOnt 694 (Ont. H.C.); Hart v. Toronto General Trusts Corp. (1920), 47 O.L.R. 387 (Ont. H.C.); Peters Estate v. Peters (1992), 1992 CarswellPEI 107 (P.E.I. T.D.) (father transferring land to son but paying taxes and collecting rent on land; father dying and estate successfully bringing action to recover land; presumption of resulting trust arising and not rebutted by son). III.3: Between Husband and Wife FN1. Ashton v. Ashton (1932), 1932 CarswellSask 99 (Sask. K.B.); Wegrzynek v. Kinash (1978), 1978 CarswellSask 48 (Sask. Q.B.) (presumption of gift to wife where no evidence to contrary); Murray v. Murray (1979), 1979 CarswellBC 95 (B.C. S.C.) (deposits in bank accounts; money in joint account may be divided equally according to common law presumption of advancement notwithstanding that it is not "family asset" within meaning of family relations statute); Blackman v. Davison (1986), 1986 CarswellBC 83 (B.C. S.C.); affirmed (1987), 1987 CarswellBC 508 (B.C. C.A.) (circumstances not rebutting presumption of advancement; matrimonial home registered in wife's name after being purchased with proceeds of sale of house wholly paid for by husband); Greggain v. Greggain (1970), 1970 CarswellBC 142 (B.C. S.C.) (husband and wife joint tenants; quit claim transferring husband's interest to wife; heavy onus on husband to rebut presumption of advancement; protection from creditors as motive for quit claim proving parties intending resulting trust); Harvey's Application, Re (1968), 1968 CarswellBC 167 (B.C. S.C.) (evidence that tax advantages motivating conveyance insufficient in itself to rebut presumption of advancement as evidence equally consistent with gift or trust); Goodfriend v. Goodfriend (1971), 1971 CarswellOnt 131 (S.C.C.) (wife persuading husband to transfer land into wife's name as protection against being sued; no danger of judgment being obtained; presumption of advancement rebutted); Mehta Estate v. Mehta Estate (1993), 1993 CarswellMan 118 (Man. C.A.) (presumption of advancement from husband to wife having been abolished for certain purposes in some provinces by legislative means; no such legislation

CED: An Overview of the Law having been passed in Manitoba; where both spouses unable to testify, presumption assuming real significance; presumption upheld); Snell v. Snell (2006), 2006 CarswellMan 81 (Man. Q.B.) (wife and husband buying house owned by wife's aunt; wife's aunt selling couple house for $33,000 less than its fair market value; presumption of advancement between husband and wife still existing in Manitoba; no evidence that husband and wife discussing that gift used to purchase matrimonial home be returned to wife when home sold; no agreement between them that reduction in sale price would be treated as gift to wife; value of matrimonial home to be split equally between husband and wife); see also Matrimonial Property Act, R.S.A. 2000, c. M-8, s. 36; see also Family Law. FN2. Family Law Act, R.S.O. 1990, c. F.3, s. 14 [am. 2005, c. 5, s. 27(3)]; Family Property Act [title am. 2001, c. 51, s. 11(3), Sched.], S.S. 1997, c. F-6.3 [chap. no. re-en. 2001, c. 51, s. 8(2)], s. 50(1) [am. 2001, c. 51, s. 8]. FN3. Matrimonial Property Act, R.S.A. 2000, c. M-8, s. 36. FN4. Harron v. MacBean (1957), 1957 CarswellBC 63 (B.C. S.C.); Cole v. Cole (1943), 1943 CarswellBC 73 (B.C. C.A.); affirmed (1944), 1944 CarswellBC 92 (S.C.C.); Randall v. National Trust Co. (1954), 1954 CarswellMan 16 (Man. Q.B.); Wegrzynek v. Kinash (1978), 1978 CarswellSask 48 (Sask. Q.B.); Solotorow v. Solotorow Estate (1996), 1996 CarswellOnt 2063 (Ont. Gen. Div.); leave to appeal refused (1996), 1996 CarswellOnt 3830 (Ont. C.A.) (husband purchasing house in joint names of spouses but instructing registration of vendor take-back mortgage in wife's name alone when house sold; husband intending mortgage proceeds as gift to wife and wife's estate entitled to retain them); Stuart v. Multan (2006), 2006 CarswellMan 381 (Man. Q.B.) (principle extending to common law spouses); see also Matrimonial Property Act, R.S.A. 2000, c. M-8, s. 36; Family Law Act, R.S.O. 1990, c. F.3, s. 14 [am. 2005, c. 5, s. 27(3)]; Family Property Act, S.S. 1997, c. F-6.3, s. 50 [am. 2001, c. 51, s. 8(21)]; see also §§91-95 (Money in Joint Account). FN5. Klemkowich v. Klemkowich (1954), 1954 CarswellMan 86 (Man. Q.B.). FN6. Cole v. Cole (1943), 1943 CarswellBC 73 (B.C. C.A.); affirmed (1944), 1944 CarswellBC 92 (S.C.C.). FN7. Jackman v. Jackman (1959), 1959 CarswellAlta 87 (S.C.C.). FN8. Royal Trust Co. v. Jones (1934), 1934 CarswellBC 90 (B.C. S.C.); Greggain v. Greggain (1970), 1970 CarswellBC 142 (B.C. S.C.); Zhu v. Li (2009), 2009 CarswellBC 731 (B.C. C.A.); leave to appeal refused (2009), 2009 CarswellBC 2910 (S.C.C.) (husband transferring condominiums to

CED: An Overview of the Law wife; husband and wife subsequently separating; presumption of advancement not applying to transfers occurring during period of marital discord). FN9. Duncan v. Duncan (1949), 1949 CarswellBC 127 (B.C. S.C.); Biljanic v. Biljanic Estate (1994), 1994 CarswellBC 790 (B.C. S.C.); affirmed (1995), 1995 CarswellBC 1117 (B.C. C.A.) (intention to be assessed at date of transfer of land; subsequent 30-year separation irrelevant). FN10. Klimushko v. Klimushko (1950), 1950 CarswellOnt 179 (Ont. H.C.). FN11. Fedorowicz v. Skvarchuk (1951), 1951 CarswellMan 29 (Man. K.B.); Dixon v. Marksymchck (1978), 1978 CarswellMan 22 (Man. Q.B.); D. (C.) v. M. (R.) (2000), 2000 CarswellOnt 4994 (Ont. S.C.J.). FN12. Henry v. Vukasha (1957), 1957 CarswellSask 18 (Sask. Q.B.); Desaulniers v. Johnston (1909), 1909 CarswellMan 152 (Man. C.A.); affirmed (1910), 1910 CarswellMan 162 (S.C.C.); Jardine v. Jardine (2002), 2002 CarswellOnt 3602 (Ont. S.C.J.); affirmed (2004), 2004 CarswellOnt 2315 (Ont. C.A.) (parties cohabiting for 15 years; presumption of advancement not applying because parties not married; woman rebutting presumption of resulting trust; man's intention clearly to share assets with woman and provide for her financial security; man not reserving any right to revoke gift; trial judge correctly finding that wife meeting onus of establishing that husband made unconditional gift of half interest in parties' joint bank accounts and investment funds). FN13. B. (J.A.) v. C. (H.W.) (2008), 2008 CarswellBC 1007 (B.C. S.C.); Chuang v. Wong (2012), 2012 CarswellBC 483 (B.C. S.C.) (court provides summary of contradictory cases); McNamara v. Rolston (2013), 2013 CarswellBC 3536 (B.C. S.C.) (presumption of advancement applied to parties in marriage-like relationship; husband failed to prove did not intend to gift money to wife). FN14. Clelland v. Clelland (1945), 1945 CarswellBC 39 (B.C. C.A.). FN15. Matrimonial Property Act, R.S.A. 2000, c. M-8, s. 36; Family Law Act, R.S.O. 1990, c. F.3, s. 14 [am. 2005, c. 5, s. 27(3)]; Family Property Act, S.S. 1997, c. F-6.3, s. 50 [am. 2001, c. 51, s. 8(21)]; see also Mailman, Re (1941), 1941 CarswellNS 23 (S.C.C.) (prior to enactment of family law statute; presumption against intention to create joint tenancy where wife depositing funds in names of both spouses). FN16. Simpson Estate, Re (1941), 1941 CarswellSask 73 (Sask. Surr. Ct.); Juresic v. Juresic (1977), 1977 CarswellOnt 143 (Ont. C.A.); see also Masse v. Gagnon (2004), 2004 CarswellBC 2571 (B.C. S.C.) (after wife's stroke, husband granted power of attorney relating to wife's chequing

CED: An Overview of the Law account; husband having wife sign consent to put account in joint names and opening second joint account into which wife making deposit; presumption of advancement applying to first account but successfully rebutted; wife never changing her will or manner of dealing with her finances until after stroke; wife not understanding what she was signing when agreeing to put account in joint names, which was done simply for banking convenience and not to create right of survivorship; accordingly husband holding account in trust for estate after wife's death; circumstances surrounding second account raising presumption of undue influence simply due to wife's state of dependence on husband; not case of undue influence since wife and husband never having intention that funds become joint funds, but merely having joint account for banking convenience, so wife's funds in second account also held by husband in trust for estate). FN17. Cole v. Cole (1943), 1943 CarswellBC 73 (B.C. C.A.); affirmed (1944), 1944 CarswellBC 92 (S.C.C.); but see Foster v. Gustin (2003), 2003 CarswellOnt 2575 (Ont. S.C.J.) (husband and wife entering into agreement to purchase house, but separating before closing; husband giving money to enable wife to make down payment on house; money given in form of gift, but being loan in substance; even between married spouses, common law presumption of advancement replaced by statute with presumption of resulting trust). FN18. McKissock v. McKissock (1913), 1913 CarswellBC 248 (B.C. C.A.); Wakshinsky v. Wakshinsky (1924), 1924 CarswellMan 61 (Man. K.B.); Ashton v. Ashton (1932), 1932 CarswellSask 99 (Sask. K.B.); Simpson Estate, Re (1941), 1941 CarswellSask 73 (Sask. Surr. Ct.). FN19. Scales v. Aitken (1926), 1926 CarswellFor 2 (New South Wales P.C.); Church v. Church (1971), 1971 CarswellSask 12 (Sask. Q.B.); Eberle v. Eberle (1973), 1973 CarswellSask 22 (Sask. Q.B.) (no presumption from wife to husband but should consider circumstances of each case); see also Fumich v. Babic (2005), 2005 CarswellBC 2720 (B.C. C.A.) (shortly after wife winning lottery, husband asking her for $86,000 and telling her amount being to pay legal expenses incurred by mutual friend; presumption of advancement rebutted by husband's own testimony that he duped wife into advancing him money as means to get at lottery winnings to which he felt entitled). FN20. Tevine v. Tevine (1953), 1953 CarswellBC 73 (B.C. S.C.); Biljanic v. Biljanic Estate (1994), 1994 CarswellBC 790 (B.C. S.C.); affirmed (1995), 1995 CarswellBC 1117 (B.C. C.A.) (evidence however rebutting presumption of resulting trust); see also Winbigler v. Winbigler (1953), 1953 CarswellBC 15 (B.C. S.C.). III.4: Between Parent and Child

CED: An Overview of the Law FN1. Evong Estate v. Lawton (1990), 1990 CarswellNS 167 (N.S. T.D.) (niece living with aunt and uncle, and treated as their child; uncle standing in loco parentis to niece; presumption of advancement arising; funds given to niece treated as inter vivos gifts); Wilson, Re (1999), 1999 CarswellOnt 1000 (Ont. Gen. Div.) (taking into consideration natural affection between mother and child, legislative changes requiring mothers to support their children, economic independence of women and equality provisions of Charter, presumption of advancement applying to transfer of assets from mother to son; presumption not to yield to slight circumstances; rebutting presumption of advancement requiring distinct evidence and not subject to "nice refinements"); Klimashewski v. Klimashewski (1987), 1987 CarswellMan 276 (S.C.C.) (clear evidence of outright gift from mother to son rebutting presumption that son held father's interest in matrimonial home pursuant to resulting trust); Dreger (Litigation Guardian of) v. Dreger (1994), 1994 CarswellMan 89 (Man. C.A.) (presumption of advancement based upon parental obligation; strength of presumption altering depending upon circumstances of child); Young v. Young (1958), 15 D.L.R. (2d) 138 (B.C. C.A.) (presumption arising where stepfather standing in loco parentis); see also Phillips v. Phillips (1993), 1993 CarswellAlta 355 (Alta. Q.B.) (father in divorce proceedings advised not to hold property in own name; father registering condominium in daughter's name, keeping duplicate certificate of title, paying insurance, maintenance, tax and any other required amounts; father living in condominium; father later requesting transfer of title and daughter refusing; daughter holding property in trust for father and being required to reconvey title; actions of father being indication that father intending to retain beneficial ownership; purchase price being in excess of any other gifts to daughter); Wilkosz v. Amato (2000), 2000 CarswellOnt 1687 (Ont. C.A.) (parents giving money to daughters; circumstances giving rise to presumption of advancement but loan to older sibling showing prior course of conduct; advances constituting loans, not gifts); Kappler v. Beaudoin (2000), 2000 CarswellOnt 3329 (Ont. S.C.J.) (plaintiffs successful in proving loan not advance to defendant; defendant formerly common law wife to plaintiffs' son, but relationship not close enough to characterize plaintiffs as standing in loco parentis); Punisic v. LaValley (2005), 2005 CarswellOnt 2348 (Ont. S.C.J.) (plaintiff aunt purchasing home in name of defendant niece and niece's husband with expectation that they all would reside in home together; plaintiff's intention being to live in premises and be cared for by defendants; plaintiff not surrendering control of item gifted; plaintiff making gift but not intending to confer absolute unconditional ownership of home on defendants; codicils to defendants' wills showing intention to protect plaintiff's interest; niece aware that plaintiff intending to divide estate between niece and her brother; niece being aunt's fiduciary; fair-minded person would reasonably believe that plaintiff not wishing to lose entitlement to residence purchased with her own funds; presumption of advancement not overcoming any deficit of evidence needed to

CED: An Overview of the Law support gift; aunt not in loco parentis to defendants); Arthur-Erickson (Administrator ad litem of) v. Erickson (2005), 2005 CarswellAlta 640 (Alta. Q.B.) (presumption of advancement not applying after testator losing capacity; testator not intending gift to child of interest in joint account to apply to deposits made after testator becoming incompetent). FN2. Royal Trust Co. v. Jones (1934), 1934 CarswellBC 90 (B.C. S.C.); Tucker Estate v. Gillis (1988), 1988 CarswellNB 375 (N.B. C.A.) (estate unable to rebut presumption of advancement by adducing illegal scheme but mortgage part of scheme; estate unable to recover amount due on mortgage); Phillips v. Phillips (1993), 1993 CarswellAlta 355 (Alta. Q.B.) (father purchasing condominium during divorce and registering property in daughter's name; father keeping duplicate certificate of title and paying insurance, maintenance and taxes; father residing on property and being advised not to hold property in own name; daughter later refusing to transfer title to father; father obtaining declaration that title held by daughter in trust for him; father not able to set up his own illegality or fraud to defeat presumption of advancement in favour of daughter; however acquisition and placing title in daughter's name not illegal; actions of father indicating intention to retain beneficial ownership; purchase price in excess of any gifts made to daughter); Ovans v. Ovans (2006), 2006 CarswellAlta 471 (Alta. Q.B.) (father needing more pasture to graze cattle but not having funds to purchase available property; father's daughter qualifying for mortgage under provincial young farmers program and title to property issued in her name; father bringing action for declaration that daughter holding property in trust for him; father unable to rebut presumption of advancement in favour of daughter; daughter found to be rightful owner of property; property purchased only because of daughter's ability to finance it; father not entitled to rely on evidence of illegality to rebut presumption of advancement so fraudulent use of provincial program could not be considered; apparent common intention being for property to be used for benefit of family farm, which is not dependent on legal ownership of property; daughter reasonable in concluding that property intended to be hers; daughter contributing labour for benefit of family farm; presumption could not be rebutted based on daughter's financial status as daughter always being financially dependent); Niem v. Ko (2003), 2003 CarswellBC 3197 (B.C. S.C.) (mother buying several properties registered in joint tenancy with daughter; mother keeping proceeds from sale of some properties; mother purchasing guaranteed investment certificate in joint names of daughter and son-in-law; mother paying income tax on interest earned on GIC; couple's entitlement to make withdrawals limited to emergency; mother paying all household expenses and giving couple allowances, bank accounts, and automobiles; mother subsequently transferring interest in residence to daughter and daughter signing trust declaration; assets not family assets as mother being beneficial owner of all daughter's assets; presumption of advancement from mother to child rebutted; no evidence that mother intending to make gift of

CED: An Overview of the Law any assets; whole course of conduct showing intention to shield daughter from being taken advantage of and to retain control over assets); see also Tribe v. Soiseth (2006), 2006 CarswellBC 1005 (B.C. S.C.) (couple living in condominium purchased by wife's parents; title registered in name of husband but wife's parents holding mortgage and option to purchase; presumption of advancement rebutted; intention of husband and parents being to beneficially own condominium as investment property; purpose of registering title in husband's name being to avoid capital gains tax; husband not required to rely on illegal scheme to rebut presumption as tax exemption not claimed and parents could repent from scheme; intention proved by documents and surrounding circumstances); Hamilton v. Hamilton (2004), 2004 CarswellOnt 5378 (Ont. S.C.J.) (son and father entering into partnership agreement where father retaining 60 per cent ownership of farm and transferring 40 per cent to son; revenues and net profits of business to be divided on equal basis; no portion of farm gifted to son; evidence surrounding transfer more consistent with business transaction than gift; word "gift" not appearing in any documentation relating to transaction; partnership agreement and equal division of income between parties could be construed as benefit and form of consideration to father). FN3. Royal Trust Co. v. Jones (1934), 1934 CarswellBC 90 (B.C. S.C.). FN4. Edwards v. Bradley (1957), 1957 CarswellOnt 63 (S.C.C.); Wispianska v. Kuzniar (Jopowicz) (1978), 1978 CarswellBC 317 (B.C. S.C.) (conveyance of undivided joint interest to other joint tenant, by mother to daughter); MacQuarrie v. Barber (1993), 1993 CarswellAlta 98 (Alta. Q.B.) (application of presumption of advancement between mother and child questionable); Main v. Main (No. 2) (1938), 1938 CarswellMan 61 (Man. K.B.) (presumption not supported; not able to show mother intended gift to sons); see also Milliard v. Malisefski (1989), 1989 CarswellBC 806 (B.C. C.A.) (mother securing only some of cash advances to son with promissory notes; advances not backed by notes being inheritance; no evidence rebutting inference from notes that those advances intended as loans); Wilson, Re (1999), 1999 CarswellOnt 1000 (Ont. Gen. Div.) (presumption of advancement rebutted due to evidence of contrary intention); Sterkenburg Estate v. Sterkenburg (2005), 2005 CarswellOnt 1897 (Ont. S.C.J.) (no presumption of advancement between mother and son; even assuming such presumption, on balance of probabilities, presumption rebutted; not mother's intention to gift insurance premium payments to son for use absolutely and unconditionally; payments impressed with trust requiring that they be utilized for specific purpose in accordance with terms of mother's will). FN5. Dreger (Litigation Guardian of) v. Dreger (1994), 1994 CarswellMan 89 (Man. C.A.) (presumption of advancement based upon parental obligation; strength of presumption altering depending upon circumstances of child; executor son named as beneficiary of RRSPs and insurance policies but holding proceeds on resulting trust for his sister); see also Wilson, Re

CED: An Overview of the Law (1999), 1999 CarswellOnt 1000 (Ont. Gen. Div.) (taking into consideration natural affection between mother and child, legislative changes requiring mothers to support their children, economic independence of women and equality provisions of Charter, presumption of advancement applying to transfer of assets from mother to son; presumption not to yield to slight circumstances; rebutting presumption of advancement requiring distinct evidence and not subject to "nice refinements"); McLear v. McLear Estate (2000), 2000 CarswellOnt 2410 (Ont. S.C.J.) (prior to death, bulk of mother's estate invested in GICs held jointly with one daughter; gift not proved and presumption rebutted by evidence of gift of one quarter share to two sisters; brother entitled to share; presumption of advancement not necessarily appropriate in modern context where child is managing affairs of elderly patient). FN6. Eldridge v. Royal Trust Co. (1922), [1922] 1 W.W.R. 792 (Alta. S.C.); affirmed (1922), 1922 CarswellAlta 86 (Alta. C.A.); affirmed (1923), 1923 CarswellAlta 113 (S.C.C.) (father purchasing land and taking transfer of land in son's name; transfer never delivered; gift valid). FN7. Groat v. Kinnaird (1914), 1914 CarswellAlta 42 (Alta. C.A.); Ming, Re (1970), 1970 CarswellBC 106 (B.C. S.C.); Cohen v. Cohen (1985), 1985 CarswellAlta 346 (Alta. Q.B.) (evidence of parties' common intention that company share be held in trust sufficient to rebut presumption; not warranty or collateral contract; bargain affirmed by registration of transfer); Chickeness v. Shields (1984), 1984 CarswellSask 270 (Sask. Q.B.) (presumption of advancement applying to purchase of property by father in name of mentally handicapped son); Adshade v. Adshade (1984), 1984 CarswellNS 26 (N.S. T.D.) (presumption of advancement for gift of land to family member rebuttable; presumption rebutted by facts showing poor relationship between donor and donee, lack of supported evidence of advancement to other family members of equal degree and donor's continuing exercise of control over property); Phillips v. Phillips (1993), 1993 CarswellAlta 355 (Alta. Q.B.) (father registering condominium in daughter's name during course of divorce and matrimonial property proceedings; purpose of registration being to ensure father could not be evicted; evidence of father and daughter conflicting over whether daughter holding property in trust or property being gift; father's evidence rebutting presumption of advancement; father's actions not illegal and not intended to or actually prejudicing wife in matrimonial proceedings; court ordering new title issued in father's name); Turner v. Hawkins (2002), 2002 CarswellOnt 3537 (Ont. S.C.J.) (when funds are advanced by family members to a daughter and son-in-law, there is rebuttable presumption that advance is gift; donor unable to turn what was initially gift into loan without agreement of donees; husband not agreeing to transformation; in absence of agreement to repay, established by preponderance of evidence, no finding possible that advance was loan); see also Intestate Succession Act, S.M. 1989-90, c. 43, C.C.S.M., c. I85, s. 8; Estates Administration Act, R.S.O.

CED: An Overview of the Law 1990, c. E.22, s. 25; Intestate Succession Act, 1996, S.S. 1996, c. I-13.1, s. 16; Milliard v. Malisefski (1989), 1989 CarswellBC 806 (B.C. C.A.) (mother securing only some of cash advances to son with promissory notes; advances not backed by notes being inheritance; no evidence rebutting inference from notes that those advances intended as loans); Allen v. Bergen (1995), 1995 CarswellBC 313 (B.C. C.A.) (father directing portion of loan repayment to GIC and account held by wife and daughter jointly; daughter holding undivided one-half interest; gift complete as each payment credited); Dmytrow v. Dmytrow (2000), 2000 CarswellMan 348 (Man. Q.B.); affirmed (2001), 2001 CarswellMan 297 (Man. C.A.) (gift of property not declared by husband or acknowledged by son to be advancement to son as required by intestate succession statute); R. (G.) v. R. (T.) (2005), 2005 CarswellBC 1631 (B.C. S.C.) (advance from mother being gift and not loan; advance never considered by mother or son to be "bridge financing" to be immediately repaid upon completion of relocation project and sale of family home; advance made because mother having money available and prepared to assist son and daughter-in-law in relocation project because son requesting that she do so). FN8. Groat v. Kinnaird (1914), 1914 CarswellAlta 42 (Alta. C.A.). FN9. Pecore v. Pecore (2007), 2007 CarswellOnt 2752 (S.C.C.) (application of presumption of advancement being restricted to transfer between parent and minor child; presumption of resulting trust being applied to transfer between parent and adult child). FN10. Wengenmeier v. Wengenmeier (2004), 2004 CarswellBC 942 (B.C. S.C.) (no documentary evidence to support characterization of money given by husband's parents as debt as opposed to gift; husband's father deceased and no admissible evidence from husband's mother, documentary or otherwise, that money being loan; husband failing to adduce evidence to contrary; monies being gift). FN11. Lama, Re (1941), 1941 CarswellMan 52 (Man. K.B.); Whitford v. Whitford (1942), 1942 CarswellNS 16 (S.C.C.) (gift held not advancement but absolute); Clemens v. Clemens Estate (1956), 1956 CarswellOnt 67 (S.C.C.); Milliard v. Malisefski (1989), 1989 CarswellBC 806 (B.C. C.A.) (mother securing only some of cash advances to son with promissory notes; advances not backed by notes being inheritance; no evidence rebutting inference from notes that those advances intended as loans); Locke v. Locke (2000), 2000 CarswellBC 1856 (B.C. S.C.) (funds from grandparents being gift or advance on inheritance to grandsons); Goldring v. Lococo (2002), 2002 CarswellOnt 4579 (Ont. S.C.J.); affirmed (2004), 2004 CarswellOnt 2297 (Ont. C.A.) (wife's father advancing funds to her and characterizing advance as loan; wife dying; father bringing unsuccessful action against wife's husband for repayment of loan; no intention in course of marriage to bar husband from having benefit of any inheritance or other rights that

CED: An Overview of the Law would flow to him should wife die; advance not exclusively loan; advanced sum intended to be payment to wife as preliminary payment in respect of family trust or other inheritance; advance of money being conditional gift; principal condition being that advance repayable if marriage failing by virtue of divorce or separation; when wife dying, advance characterized as gift, condition having been fulfilled); see also Devolution of Estates. FN12. Simpson v. Ziprick (1995), 1995 CarswellBC 396 (B.C. C.A.); leave to appeal allowed (1996), 199 N.R. 157 (note) (S.C.C.) (daughter holding undivided one-half interest in joint tenancy for herself and her three sisters, not legal and beneficial interest with right of survivorship in other one-half interest); see also Castellan v. Muncey Estate (2003), 2003 CarswellBC 930 (B.C. S.C.); reversed (2004), 2004 CarswellBC 484 (B.C. C.A.) (mother's will designating defendant daughter as trustee and beneficiary; plaintiff daughter designated as cobeneficiary; will stipulating equal division between two daughters; three months after mother preparing will, defendant daughter alleging transfer to her of proceeds of mother's home being gift; judge finding reasonable inference being that transfer not intended as gift; judge finding presumption of resulting trust not rebutted; judge making number of rulings about hearsay evidence and finding evidence on behalf of defendant inadmissible or of very little weight; judge granting plaintiff's application for summary judgment; defendant's appeal allowed and new trial ordered; heart of case lying in credibility of witnesses and their evidence; to make adverse finding on reliability without seeing witnesses on whom whole assessment on credibility depends is poor foundation for finding of reliability or unreliability; case not suitable for summary trial and requiring hearing on oral evidence); Plamondon v. Czaban (2004), 2004 CarswellAlta 583 (Alta. C.A.); leave to appeal refused (2005), 2005 CarswellAlta 36 (S.C.C.) (deceased signing transfers to self and son of two quarter-sections of farmland, which son helped farm; deceased later signing bill of sale in favour of son, covering machinery used in farming operation; daughters of deceased bringing unsuccessful action to undo transfers to son; no evidence of undue influence; transfers being gifts; no evidence of express or implied trust in favour of daughters; any "rule" against double portions being presumption at best; trial judge specifically finding that deceased aware that lifetime gifts and bequests in will taken together might be unequal; son not breaching fiduciary duties to daughters and not engaging in conflict of interest as executor of will). FN13. Christmas Estate v. Tuck (1995), 1995 CarswellOnt 1121 (Ont. Gen. Div.). FN14. Orenczuk v. Dolinsky (1927), 1927 CarswellAlta 29 (Alta. C.A.). FN15. V. (R.J.) v. V. (J.L.) (2003), 2003 CarswellBC 2470 (B.C. S.C.) (wife failing to rebut presumption; sum advanced by mother not loan).

CED: An Overview of the Law FN16. Saylor v. Madsen Estate (2005), 2005 CarswellOnt 5896 (Ont. C.A.); affirmed (2007), 2007 CarswellOnt 2754 (S.C.C.); Pecore v. Pecore (2007), 2007 CarswellOnt 2752 (S.C.C.) (presumption of advancement relevant only if, after considering all evidence and circumstances surrounding transfer, court unable to draw conclusion about transferor's actual intention; testator's intention known; unnecessary for trial judge to resort to presumption of advancement); S. (T.) v. S. (M.) (2011), 2011 CarswellBC 3365 (B.C. S.C.) (gratuitous transfer from parent to adult children carrying presumption of resulting trust). III.4: Between Strangers FN1. Sheppard v. Toronto General Trusts Corp. (1937), 1937 CarswellBC 19 (B.C. S.C.). FN2. Mailman, Re (1941), 1941 CarswellNS 23 (S.C.C.); Clelland v. Clelland (1945), 1945 CarswellBC 39 (B.C. C.A.).