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Sometimes, timing is everything.

In Re Barbeau, the deceased died on September 17, 2011 at 5:40 am. He died leaving a Will that left the residue of his estate to his spouse if she survived him for a period of thirty days. If she did not survive him for thirty days, his estate would pass to one of his spouse’s daughters. Under the spouse’s Will, her estate passed to her five children.

As fate would have it, the deceased’s spouse died on October 17, 2011 at 4:45 pm.

The question the court had to grapple with was whether the deceased’s estate passed to his spouse, and therefore her five children under her Will, or to the one daugther, under his Will.

In the decision, the court set out the two possible interpretations: either the thirty days are calculated as thirty 24-hour periods commencing on September 17, 2011 at 5:40 am, or applying the analogy of the Rules of Civil Procedure, the thirty day period commenced on the day after the date of death. If the second interpretation prevailed, what was the effect of the spouse not being alive for the entire thirtieth day?

The court noted the purpose of such survivorship clauses: to prevent the application of s. 55 of the Succession Law Reform Act (survivorship), and to avoid the imposition of two sets of administration taxes and costs in the event that both spouses died at the same time or within a short period of one another.

The court also noted that the selection of a thirty day period was likely arbitrary. Further, the court noted that interpreting the Will, the court was to strive to determine the intention of the testator.

The court found that there was an inconsistency in the Will, in that it provided different outcomes if the first interpretation was applied. That is, the spouse would have survived for thirty days, but also have died within the thirtieth day. This, the court found, was not intended.

Thus, the court concluded that if the first day was excluded, applying the Rules of Civil Procedure, then the inconsistency was avoided. The spouse would have to survive for thiry full days: that is, survive until some time on the thirty-first day. As the spouse did not survive for thirty full days, and died within the thirty day period, the residue of the estate passed to the one daughter.

Until tomorrow,

Paul Trudelle

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“You never call”: a common lament of elderly parents aimed at their adult children. Now, it appears that failing to call, or more specifically, to visit your parents in China may result in legal action.

According to a recent Toronto Star article, China has recently amended its law on the elderly to require that adult children visit their parents “often”, or risk being sued by them. 

China, perhaps more than any other country, is facing a significant issue with its aging population. In just fifty years, the average life expectancy soared from 41 to 73. Coupled with family planning policies that limit most families to a single child, and a lack of affordable options for the care of the elderly, such as retirement or nursing homes, this has led to an elder care crisis. The legislation is aimed at assisting the elderly in seeking care.

While the legislation may seem extreme, there is already legislation on the books in Ontario to a similar effect. While it does not require visits, section 32 of the Family Law Act provides that an adult child has “an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.”

The Ontario provision was applied in a few reported decisions. It was discussed in an adoption decision, Re Proposed Adoption of Q.(A.L.K.). There, the court noted that “dependencies shift” from parent to child, and an adult child has a “clear responsibility … to shore up the parent’s own financial resources, if the parent has need of that.”

Note to my children: Govern yourselves accordingly, Christopher and Marc.

Have a great weekend.

Paul Trudelle

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Yesterday, I read in the Toronto Star about a couple that resolved last year to make the year a year of “firsts”. They resolved to learn, make or experience 365 new things in 365 days. They blogged about their progress in knocking items off of their bucket list at http://www.365thingsin365days.com/. 

Inspired by their story, yesterday I went indoor rock climbing with my two teenaged sons at True North Climbing at Downsview Park. We had a blast, and were very proud of our achievements. We tried a new adventure that took us out of our comfort zone. We had a great time, got a little exercise, and bonded over what is a combination of a personal challenge, and a trust exercise. (Sort of like that exercise where you fall backwards, hoping to be caught by the group.    Only in this case, the fall is from 10 metres, with your young son at the bottom, controlling (or not) your fall.)

In our Hull and Hull blogs this year, we hope to do something like the couple reported on in the Star did. We want to expose our readers (and ourselves) to new things every day: new lessons to learn, new ways of looking at old issues, new cases, new approaches to difficult estates and trusts issues.

We value you feedback. Please comment on what you read, or what you would like to read. 

Please stay tuned. It is going to be a great year.

Until tomorrow,

Paul Trudelle

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A representative of William Faulkner’s estate is suing representatives of Woody Allen’s movie project, “Midnight in Paris” over its use of a quote from Mr. Faulkner.

The line, “The past is never dead. It’s not even past”, is taken from Faulkner’s 1950 novel “Requiem for a Nun”. In the movie “Midnight in Paris”, time-travelling Owen Wilson says “The past is not dead. Actually, it’s not even past.”

Faulkner’s estate is suing for copyright infringement, and is seeking damages, disgorgement of profits, costs and attorney fees. The defendants are defending the claim, relying on the “fair use” defence. Consistent with the “fair use” claim, it is noted in the article that President Obama paraphrased the quote in a speech during his 2008 campaign.

Faulkner’s executor, Lee Caplin, is quoted as saying that the suit is being brought in order to look out for the fiduciary responsibilities of the Faulkner estate.

We have blogged before on various estates involving literary works. In most cases, the estate trustee(s) will go to great lengths in order to ensure that there is an appropriate financial return on the literary works, while also ensuring that the works are not devalued or cheapened. 

(Paranthetically, I note that Woody Allen did not chose to quote Faulkner’s Guiness Book of World Records record-setting 1,288 word “Longest Sentence in Literature” found in “Absalom, Absalom”, published in 1936.)

“Thank you for reading.”*

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*may be subject to copyright

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In Thiemer Estate, a decision of the B.C. Supreme Court, 2012 BCSC 629 (CanLII), the deceased left an estate having a value of $20m. He left a will that provided for various specific legacies. The will also included a clause that directed the payment of “the balance of any money which I may have at the time of my death” to a common-law spouse. The will went on to define “money” as including “the balance of any money which I may have in any savings and current accounts in my name, any savings certificates, shares and bonds but excluding” insurance proceeds and RRSPs.

At the time of his death, the deceased had bank accounts, GICs, a mortgage receivable, and most relevant to the proceeding, shares in private companies having a value of $14m.

At issue in the interpretation application was whether the definition of “money” in the will, which referred to “shares”, meant that the value of the private companies was to be paid to the common-law spouse.

The decision sets out the relevant guiding principles, and case law on the definition of “money”.

The court decided that the reference to “shares” in the definition of “money” was not intended to include the shares in the private corporations. Essentially, the items included in the meaning of “money” were items that were in the form of cash, or which could be readily converted into cash. This might, then, include shares in publicly traded corporations. It was held, however, that the definition did not extend to shares in a private corporation, which by their very nature could not be readily liquidated.

This conclusion was fortified by other terms of the will. For example, the will established a spousal trust. If the spouse’s position on the definition of “money” was accepted, there would be very little left in the spousal trust. Further, the will provided extensive administrative powers to the trustees with respect to the ongoing operation of the companies. The spouse’s interpretation of “money” would render these powers “superfluous”.

The case is very instructive in the interpretation of wills, generally, and the application of those principles of interpretation in a specific context. 

Thank you for reading,

Paul Trudelle - Click here for more information on Paul Trudelle. 

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A client (or friend, or my mother: I can’t quite remember who) once referred to her children as “waiters”, as in “They’re waiting for me to die”.

To this point, a recent article on the Globe and Mail online by Rob Carrick warns against children relying on an inheritance to bail them out.

The article refers to an oft-quoted report from 2006 that suggested that $1-trillion ($1,000,000,000,000) will be inherited in the next twenty years. The article suggests that this number might be less today, due to increased debt-load, falling property values, weak investment returns and longer lifespans. However, whatever the number may be today, it is still a significant one.

The article cautions children from relying on these numbers and a potential inheritance to bail them out of trouble. Carrick says “As for people counting on an inheritance, that’s only one step away, in financial planning terms, from waiting for a lottery win.”

As ill-advised as it may be, 53 per cent of Canadians are expecting an inheritance, and 57% of those who think they know what they are getting expect it to be in the six-figure range.

However, those expecting a big inheritance may be disappointed. Second (or third, or fourth…) relationships may eat into their inheritance. Further, seniors are living longer, and the costs of senior care can take up a large portion of a senior’s savings. Coupled with this is the fact that government pensions may not be able to provide significant assistance.

The message seems to be to live within your means, and plan for your own future needs and well-being. Don’t spend your inheritance before it comes in.

Have a great long weekend.

Paul Trudelle

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On Tuesday, I blogged on the recent Ontario Court of Appeal decision of Aragona v. Aragona, 2012 ONCA 639.

There, the application judge denied the guardian compensation. In so doing, the application judge noted the guardian’s failure to keep proper accounts. The Court of Appeal stated that a guardian has, by statute, a fiduciary obligation to carry out his or her obligations with honesty and due care and attention. “The core of these obligations includes the duty to be in a position at all times to prove the legitimacy of disbursements made on behalf of the estate.” 

Further, the application judge went on to find that “the conduct [of the guardian] has been shocking. He has literally helped himself to many thousands of dollars from his mother’s estate, at a time when his mother had Alzheimer’s and was unable to look after her own affairs.”

Together, these two factors led to a denial of compensation: a conclusion that was said to be clearly in the discretion of the application judge.

In denying compensation, both the Court of Appeal and the court below relied on the decision of Zimmerman v. McMichael Estate, 2010 ONSC 2947. This decision clearly sets out the obligations of a trustee, including the obligation to account. The application judge found that because significant funds disappeared from the estate without adequate explanation, it was appropriate to award no compensation. The application judge contrasted this with the situation in Re Assaf Estate, 2009 CanLII 11210.  There, there was wrongdoing found, but no harm was said to have resulted to the estate. In that situation, compensation was reduced by 50%, but not disallowed completely.

Thanks for reading,

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Yesterday, Ian Hull tweeted on the recent Ontario Court of Appeal decision of Aragona v. Aragona, 2012 ONCA 639.

There, the Court of Appeal dismissed, for the most part, an appeal by a guardian from a decision dismissing his application to pass accounts. The motions judge ordered that the guardian repay a significant amount to the estate; dismissed his claim for reimbursement for certain legal fees, and deprived the guardian of compensation.

The guardian appealed the finding that he had to repay funds to the estate on the basis that the application judge did not provide adequate reasons. The Court of Appeal noted that the appellate court’s focus is on whether the reasons explain what was decided and why the decision was made. “Ultimately, the test is whether the reasons permit reasonable appellate review.” The Court of Appeal found that, “Shortcomings notwithstanding”, the application judge’s reasons were adequate. The findings of the applications judge were supported by the record; the applications judge’s assessment of credibility was entitled to deference; and the application of the facts to the controlling legal principles leading to the conclusions reached was explained.

Tomorrow, I will look at the discussion of the application judge’s denial of compensation.

Thanks for reading,

Paul Trudelle

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According to a CNBC report, only half of millionaire baby boomers think that it’s important to leave money to their kids. A third of them would rather leave their money to charity rather than their kids. 

For example, Warren Buffett has reportedly given 85% of his wealth to charity (the Melinda and Bill Gates Foundation). “My kids were elated when I told them. They knew my views on inherited wealth and shared them. … I believe in equality of opportunity. … They should not inherit my position in society, based on the womb that they were born from.”

One reasons for this given in the article is parents wanting their kids to learn the lessons of struggle and hard work, and the joys of self-earned success. Another reason cited is that parents may not think that their kids can handle a substantial legacy.

Yet another reason parents may not want to leave their kids a lot of money is to avoid having their kids appear in “Rich Kids of Instagram” (twitter: #rkoi). The site, whose by-line is “They have more money than you and this is what they do”, features pictures of young people enjoying, to the extreme, the richer things in life.

As stated by Andrew Carnegie when he wrote on the very topic of passing on an estate in “The Gospel of Wealth” in 1889, “I would as soon leave my son a curse as the almighty dollar.”

Have a great weekend. Spend it wisely.

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In Ontario (as in most jurisdictions), a person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointer: see s. 61 of the Children’s Law Reform Act.

The appointment is only effective if there is no one surviving who is entitled to custody. In Ontario, the appointment is only effective for 90 days, during which time an application for guardianship is usually brought.

Choosing a guardian can be a difficult task. Where there are two parents, a consensus should be reached. (Under the Ontario legislation, where there is more than one appointment, the appointment is only effective with respect to the guardian(s) named in both appointments.)

The Will of the recently deceased Beastie Boy, Adam Yauch, contains an unusual clause that may be the result of the difficulty of resolving the question of who to appoint, and the compromises that are sometimes made.

In his Will, according to an article on the Forbes website by Deborah L. Jacobs, if Yauch died in an even-numbered year, his parents are to be appointed as guardians of his daughter, with his wife’s parents as backup. If Yauch died in an odd-numbered year, the situation was reversed, and his wife’s parents were appointed guardians, with Yauch’s parents as backup. 

Such a clause would only be effective if his wife predeceased him, or died at the same time as Yauch.

Presumably, the terms of Yauch’s wife’s Will mirrored these provisions.

An interesting solution to a common issue.

Thank you for reading,

Paul Trudelle - Click here for more information on Paul Trudelle. 

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Yesterday, I commenced summarizing an article on time management found in the August 2012 newsletter from Palmer Reed, Chartered Accountants. 

Further time management tips include:

-always confirm meetings. This avoids wasting time associated with “no shows”; 

-organize and schedule trips so that several tasks can be completed on the same trip. If you are going out of town to meet a client, see if you can meet another client on the same trip;

-if you need to “mull over” a problem on a project, fill the time by completing other mundane tasks that must be completed. This, it is said, allows you to regroup your thoughts, while moving the project forward towards completion. Be careful, however, not to put off the difficult task indefinitely;

- keep social interaction to a minimum. The article reminds us that just five minutes lost ten times a day works out to be almost a month of lost working time over the course of a year; and

-schedule meetings near the end of the day. The time constraint of wanting to leave at the end of the day will help ensure that the agenda is dealt with efficiently.

Thank you for reading,

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Upon returning to the office from vacation, I found in my “In Box” the August 2012 newsletter from Palmer Reed, Chartered Accountants, Toronto. In it, there was an excellent article on time management. As the article states, establishing good work habits and tweaking existing ones will improve productivity and can be significant money savers.

The tips include:

-logging kilometres driven and destinations every day. This ensures proper reimbursement, proper allocation to client accounts, and avoids the problem of trying to recall trips at the end of the month;

-design a spreadsheet that categorizes expenses and ties them to your general ledger chart of accounts;

-save time by effective filing. Create detailed files, whether paper or electronic, and file documents immediately upon receipt;

-on that note, open and read all paper and electronic mail when received. Decide what to do with it. Failing to immediately deal with it means that you will have to deal with it again; and

-if possible, wait for all of the parts or pieces of information to be received. This avoids starting and then having to restart a project when further information comes in.

More tomorrow. For now, it’s time to get back to work!

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Yesterday, I blogged on the Carter v. Canada (Attorney General) decision on assisted suicide, and how it addressed the issue of the mental capacity of the individual.

In thinking about the case from an estates perspective, I considered the potential impact of assisted suicide on life insurance. Most life insurance policies have a contestability clause that provides that insurance will not be paid out if the policy holder commits suicide within two years. Thus, an insurer may not pay out if there is an assisted suicide within two years. However, as noted in a posting on Insure.com, the odds of the contestability clause issue arising are “very small”. Most insurers will not issue a policy to a terminally ill applicant. If the applicant fails to disclose the medical condition, the policy may be void for that reason alone.

Another issue that arises is whether the public policy that precludes a person from inheriting from an estate on the basis that the potential beneficiary should not benefit from the crime. The Carter decision strikes down the provision criminalizing assisted suicide, but only in the context of “physician-assisted suicide”. The wording of the declaration goes even further, and declares that the provisions are of no force and effect

“to the extent that they prohibit physician-assisted suicide by a medical practitioner in the context of a physician-patient relationship, where the assistance is provided to a fully-informed, non-ambivalent competent adult patient who: (a) is free from coercion and undue influence, is not clinically depressed and who personally (not through a substituted decision-maker) requests physician-assisted death; and (b) is materially physically disabled or is soon to become so, has been diagnosed by a medical practitioner as having a serious illness, disease or disability (including disability arising from traumatic injury), is in a state of advanced weakening capacities with no chance of improvement, has an illness that is without remedy as determined by reference to treatment options acceptable to the person, and has an illness causing enduring physical or psychological suffering that is intolerable to that person and cannot be alleviated by any medical treatment acceptable to that person.”

Thus, the criminality of assisted suicide involving, say, a husband and wife, or parent and child, remains. Such an assisted suicide will therefore likely trigger the prohibition on inheriting.

The wording of the declaration of the court addresses another issue relevant to our practice. While it is generally understood that by a Power of Attorney, the grantor can grant power to do anything that the grantor can do except make a will, the declaration strikes down the criminality of physician assisted suicide only if the patient makes that decision personally, and not through a substituted decision maker.

Have a great weekend.

Paul Trudelle - Click here for more information on Paul Trudelle. 

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There has been much in the media lately on the British Columbia Supreme Court decision concering assisted suicide.

In the decision, Carter v. Canada (Attorney General), 2012 BCSC 886 CanLII, the Court struck down the provision in the Criminal Code that prohibits physician-assisted suicide.

(Section 241 of the Criminal Code provides that “Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.”)

The lengthy, well-organized decision deals with the question in great detail.

One aspect of the decision particularly pertinent to our area of practice addresses the government’s position that the impugned section is necessary in order to avoid the risk of wrongful death of incompetent persons. The government argues that it can be difficult to determine whether a person is capable of making a decision to end their own life.

The court accepted evidence to the effect that, even taking into account the possibility of cognitive impairment or depression in patients, and the possibility that physicians may be influenced by inaccurate assumptions about their patients, it is feasible for physicians to assess competence with high reliability.

The court concluded, on this narrow point, that it is feasible for properly-qualified and experienced physicians to reliably assess patient competence, including in the context of life-and-death decisions, so long as they apply a very high level of scrutiny appropriate to the decision and proceed with great care.

Thank you for reading.

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In making an award of dependant support, the court has a broad discretion under s. 58(1) and 63(2) of the Succession Law Reform Act.

Once a determination is made that a claimant is a dependant, and has not been adequately provided for by the deceased, the court has broad powers when ordering that provision for the dependant be made out of the estate. In addition to an expanded definition of the “estate” under s. 72, the court may make orders for lump sum payments, annual payments or otherwise, for a limited or indefinite period, or lump sum payments in addition to periodic payments, in addition to other powers.

A good example of the creative power of the court is demonstrated in Sorkos v. Sorkos Estate, 2012 ONSC 3196 (CanLII). There, the deceased died having an estate of approximately $2.6m. The claimant and the deceased appear to have been married for less than 10 years. The claimant was 69 years old, did not speak English, and was unable to work for medical reasons. The deceased had no other dependants.

In his Will, the deceased left the claimant $250,000. He also named her as the beneficiary of his RRIF, having a value of $287,000, and paying the claimant $1,200 per month. The residue of the deceased’s estate passed to the deceased’s siblings.

The court found that the claimant was a dependant, and that the deceased did not provide adequate support for her. In so finding, the court noted that it was not to undertake a strictly needs-based economic analysis. Further, the assessment of proper support was to be measured over the course of the dependant’s anticipated lifetime.

In making its award, the court reduced the bequest to the claimant from $250,000 to $150,000. However, the court awarded the claimant support of $3,000 per month ($36,000 per year) for the rest of the claimant’s life. As security, the estate was to purchase an annuity, payable to the Applicant, with a reversionary interest to the estate.

Thank you for reading.

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In many cases, we see offers to settle that are open for acceptance until a few minutes after the commencement of the hearing of the matter. They are structured this way so as to trigger the costs consequences under Rule 49.10 of the Ontario Rules of Civil Procedure, if not accepted. Rule 49.10 provides for adverse costs consequences if a favourable offer is not accepted that “is not withdrawn and does not expire before the commencement of the hearing”.

In Re Galeveski, 2012 ONSC 3460, a decision released June 12, 2012, the issue was whether the offer, which was to expire 5 minutes after the commencement of the hearing of the Application to pass accounts, was still open for acceptance. There were several procedural orders made in the proceeding. The court held, however, that the matter was not actually “heard” on any of the preliminary dates as the application was never dealt with on its merits, and no judge was seized of the matter.

The court noted that in in the context of a trial, it is commonly understood that the trial commences when evidence begins to be heard. In some cases, it has been held that the trial commences when the judge is present and prepared to hear the matter on its merits. 

In Re Galeveski, the offer was held to be open for acceptance.  The court went on to consider whether the offer should be enforced. Although the court has discretion whether to enforce a settlement or not, the court concluded that the settlement should be enforced.

Thank you for reading.

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The time line in passing of accounts proceedings is being changed. Recent amendments to the Ontario Rules of Civil Procedure extend the time period for service of the Notice of Application to pass accounts, and move up the time within which to deliver a Notice of Objection. 

The amendments also increase the costs allowable upon an unopposed passing of accounts.

The amendments, found in Ontario Regulation 55/12, come into effect on July 1, 2012.

With respect to timing, the amendments make the following changes:

• Notice of Application: Ontario respondent: 60 days notice (up from 45)
• Notice of Application: Outside Ontario respondent: 75 days notice (up from 60)
• Notice of Objection: 30 days before hearing (up from 20 days)
• Response from Children’s Lawyer or Public Guardian: 30 days before hearing (up from 20 days)

The amendments also codify what is required where a request for increased costs is being made, and the time frame for making and opposing such a request.

The tariff for costs allowable on an uncontested passing allows for greater costs. The costs range from $2,500 for an estate having a value of less than $300,000, to $7,500 for an estate having a value of $3,000,000 or more (up from a range of $800 to $5,000).

Have a great weekend.

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Does One Live Performer and One Dead Performer a Tupac Make?

A holographic Tupac Shakur appeared recently to “perform” with Dr. Dre and Snoop Dogg at Coachella, a music festival in Los Angeles.

As readers may know, Tupac was murdered in Las Vegas in 1996. (I do not intend to weigh in on the East Coast - West Coast rivalry that apparently led to his death.)

Tupac’s virtual appearance has led to a number of discussions about the nature of “live” performances, and the appropriateness of bringing the dead back to stage.

The Forbes website posted an article that looked at the performance and the possibility of other deceased performers reappearing on stage.

The Forbes article notes that only the holder of the “right of publicity” can authorize the use of the deceased’s image. In Tupac’s case, the estate executor is Tupac’s mother. The article reports that she did not authorize the use of Tupac’s image, but was “thrilled with the outcome”. Apparently, Dr. Dre repaid the estate by making a contribution to the Tupac Amaru Shakur Foundation.

The article goes on to comment on the role of an estate trustee, and the importance of choosing the right person: someone who will ensure that your reputation and the well-being of your heirs is properly respected. “Putting the right person in charge can make all the difference between tainting your legacy, and having your wishes and goals followed the way you want.”

Thank you for reading.

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Recently, a Greek friend told me the story (which I have been unable to confirm) of Alexander the Great’s father, Phillip II, who hired a man to knock on his door three times a day to remind him that his death was coming. The purpose, it was said, was to remind Phillip of his fleeting time on earth, and to keep him humble.

Maybe Phillip II was on to something. Recently, a report has suggested that thinking about death can be a good thing. Awareness of mortality can improve physical health and help individuals reprioritize goals and values.

The report in Science Daily says that even non-conscious thinking about death, such as walking by a cemetery, can prompt positive changes and promote helping others.

One study referred to in the article showed that people were more likely to help a stranger who dropped a notebook while walking in a cemetery as opposed to helping if not in a cemetery.

Another study showed that people were more likely to make better health choices, such as applying sunscreen, smoking less, increasing physical activity or performing breast self-exams, when reminded of death.

These recent studies refute prior research that suggested that thinking about death lead to negative attitudes and harmful behaviour, such as prejudice, greed and violence.

Thanks for reading.

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The recent Court of Appeal decision in Schwartz v. Schwartz, 2012 ONCA 239 (CanLII) discusses the issue of resulting trusts and their effect on transfers of property. 

In Schwartz, Mr. and Mrs. Schwartz transferred title to their matrimonial home to Mrs. Schwartz alone in 2000. In 2006, title was transferred to Mr. Schwatz alone. In divorce proceedings, the court found that Mr. Schwartz was holding title in the matrimonial home in trust for Mrs. Schwartz. A creditor of Mr. Schwartz’s appealed

The Court of Appeal addressed the issue of resulting trusts. The Court cited Kerr v. Baranow, 2011 SCC 10 (CanLII) and its reasoning that a resulting trust may arise in the domestic context where there has been a gratuitous transfer of property. In such a case, the courts may find that a resulting trust exists, with the effect of returning the property to the person who gave it. “Thus, the beneficial interest ‘results’ (jumps back) to the true owner. When faced with such an issue, the court must consider evidence of the actual intention of the transferor. Although an intention to gift property trumps the presumption of resulting trust, the intention at the time of the transfer is a question of fact.

In conclusion, the Court of Appeal held that it was open to the motion judge to find that Ms. Schwartz did not intend to gift her interest in the property and therefore had an interest in the property, but remitted the matter to the motion judge to determine the extent of the interest. 

Thank you for reading.

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