Tag: estates and trusts

19 Jul

The Presumption of Resulting Trust in an Ageing Population

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The census-takers tell us that our population is rapidly ageing (the need for sound estate planning seems obvious). The challenges that Canadian society faces are likely profound and there is much gnashing of teeth and wringing of hands about the future. There is a certain irony to the fact that as the information age accelerates, driven by our pervasive youth culture, our population ages.

In the above context, it is worth considering what I believe to be the motivating factor or thinking behind the Supreme Court of Canada’s (“S.C.C.”) decisions in Pecore v. Pecore and Madsen Estate v. Saylor. The two recently released companion cases were eagerly anticipated by the estate bar and addressed the transfer of property by an ageing parent into joint ownership with one of their children.

The S.C.C. made it clear that the “presumption of resulting trust” is the general rule that applies to gratuitous transfers of property into joint ownership. The onus is therefore placed on the person who received the gift to demonstrate that a gift was, in fact, intended. The court also held that the “presumption of advancement” applied to transfers of property by parents into joint ownership with their minor children. The burden of rebutting such a presumption falls to the party challenging the transfer rather than the gift-receiver.

The transfer of property by an ageing parent, particularly funds into joint bank accounts, is becoming widespread. In the context of an ageing population, Rothstein J., writing for the majority of the court, specifically addressed why the presumption of resulting trust arose rather than a presumption of a gift.

As Rothstein J. noted in his decision: “… it is common nowadays for ageing parents to transfer their assets into joint accounts with their adult children in order to have that child assist them in managing their financial affairs. There should therefore be a rebuttable presumption that the adult child is holding the property in trust for the ageing parent to facilitate the free and efficient management of their parent’s affairs”. In taking note of this stepped-up practice, the S.C.C. recognized the changing dynamics of Canada’s population and framed its decision accordingly.

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04 Jun

Ontario Bar Association, Trusts and Estates Section Executive for 2007-2008

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Last week, Paul Trudelle commented in two of his blogs on the well-deserved awards presented at the Ontario Bar Association, Trusts and Estates Section Year End Dinner that was held on Wednesday, May 30, 2007 at the Royal York Hotel. Specifically, Brian Schnurr was awarded the Award of Excellence, Jordan Atin the Hoffstein Book Prize and Peter Lawson the Widdifield Award.

In addition, Corina Weigl, the Chair of the 2006-2007 Section Executive presented a report on the past year’s activities undertaken, and dealt with, by the Section Executive.

Following Ms. Weigl’s report, the slate for the 2007-2008 Section Executive was dealt with and confirmed.

The 2007-2008 Section Executive is: Jordan Atin (Chair), Kimberly Whaley (Vice-Chair), Corina Weigl (Past-Chair) and Suzana Popovic-Montag (Secretary), together with the following Members-at-Large: Ann Elise Alexander, Robert Coates, Ed Esposto, Jan Goddard, Susan Heakes, Danielle Joel, Sean Lawler, Mitchell Leitman, Joanna Ringrose, Susan Stamm, Sender Tator, Craig Vander Zee, Mary Wahbi and Melanie Yach.

I thoroughly enjoyed working with this past year’s Section Executive and look forward to working with the 2007-2008 Section Executive and Jordan, its new Chair.

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