This article is intended to offer general comments on legal developments of concern to individuals, business and legal professionals and is not intended to provide legal opinions. Readers should seek legal advice on the particular issues that concern them. March 2008.
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Estate Planning - Spousal and Family Trusts
The Presumption of Advancement -Family Gifts and Trusts
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When property is transferred between a husband and a wife or between a parent and a minor dependent child, there is a presumption (“The Presumption of Advancement”) that the property was transferred for the individual’s sole benefit and that they, therefore, could keep the property. If anybody challenged this transfer in Court, they would have to prove on a balance of probabilities (i.e. more than 50%) that the gift was intended to be held in trust (i.e. “A Resulting Trust”) for the benefit of the giver (“the transferor”) If the persons or person challenging the transfer were able to meet this burden of proof, the property would have to be returned to the transferor.
Dying With a Last Will and Testament
If the transferor died with a last will and testament, the property would be distributed in accordance with the wishes of the transferor as outlined in his or her last will and testament.
Dying Without a Last Will and Testament
If the transferor died without a last will and testament, the transferor’s property would be distributed in accordance with the provisions of a government law titled, Succession Law Reform Act.
The Presumption of Resulting Trust -Non-Family Gifts and Trusts
When a gratuitous transfer of property (i.e. a transfer of property
for no money or other consideration) is made from the giver (“the
transferor”) to the receiver (“the transferee”) and the transfer is
challenged in Court, the Court will presume that the transferee is under
a legal obligation to return the property to the transferor (i.e. a
Resulting Trust) unless the transferee can show proof on a balance of
probabilities (i.e. more than 50%) that the transferor intended the
transferee to keep the property for him or herself.
Dying With a Last Will and Testament
Where the transferor is deceased and died with a last will and testament, the transferee must return the property to the transferor’s estate to be distributed in accordance with the wishes of the deceased as outlined in his or her last will and testament.
Dying Without a Last Will and Testament
If the deceased died without a last will and testament, the deceased’s property is distributed in accordance with the provisions of a government statute law, Succession Law Reform Act.
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