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Joint Property and Intention Evidence

In the four years or so that have passed since Pecore was decided, the courts have had the chance to consider the case on several occasions and in various contexts. In decisions ranging from disputes involving family law, estates law, to even the seizure of property as a result of a crime, parties have argued both for and against the presumption of resulting trust using the framework as laid out by Pecore. Throughout all of these diverging fact patterns, however, one thing has held true. The court will always look to what the intention of the transferor was at the time the transfer was made. Some of the factors that may be important in this regard are:

·                    Wording of the document;

·                    The use of the property;

·                    The tax treatment of the property;

·                    Circumstantial evidence, like degree of friendship or closeness;

·                    Evidence of actual intention;

·                    Wording of the Will;

·                    Whether a power of attorney was granted, as this may show an appreciation of the distinction between granting the power and gifting the right of survivorship; and

·                    Intention subsequent to a transfer (this is not automatically excluded, but it must be relevant to the intention of the transferor at the time of the transfer, and the judge must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention).

Thanks for reading,

Natalia Angelini – Click here for more information on Natalia Angelini