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Wills, Estates & Trusts Law - Trusts - Resulting trusts - Creation - Presumed resulting trusts - When presumption operates - Voluntary transfer

Thursday, December 22, 2016 @ 7:00 PM  


Appeal by the defendant, Cooper, from a trial judgment finding she held property in trust for the benefit of her late mother’s estate. The parties were sisters. In 1989, their mother transferred title to herself and the defendant as joint tenants. In 2012, the mother passed away and the defendant took sole title by survivorship. The defendant alleged the 1989 transfer was in consideration for her payment of past and future expenses related to the home, her support of her mother, and her promise she would not be placed in a nursing home. The plaintiff, Franklin, denied the existence of any such agreement. The plaintiff alleged the agreement was to ensure that their mother would not be defrauded into transferring title to the home to a third party. The plaintiff claimed that the home formed part of the mother’s estate. The trial judge found that the 1989 transfer into joint tenancy was gratuitous. The trial judge concluded that the presumption in favour of a trust operated such that the defendant held her share for the benefit of the mother’s estate. The defendant appealed.

HELD: Appeal dismissed. The trial turned on credibility issues, which were the exclusive province of the trial judge and entitled to deference. There was no misapprehension of evidence or palpable and overriding error that warranted appellate interference with the trial judge’s findings of fact. The trial judge meticulously explained the basis for treating certain inconsistencies in the evidence as trivial, and others as material. The defendant was unable to show that the trial judge reached a conclusion not supportable on the evidence.Franklin v. Cooper<br/>[2016] B.C.J. No. 2415,<br/>British Columbia Court of Appeal,<br/>H. Groberman, N.J. Garson and G. Dickson JJ.A.,<br/>November 3, 2016.<br/>Digest No. 3632-017