Estate Litigation and Employment lawyer Reshma Kishnani's article "Change your mind about a gift? Beware, it may not be reversible" was published in Law360 Canada. The article addresses Sandwell v. Sayers, 2022 BCSC 605 (CanLII), where the Supreme Court of British Columbia upheld the gifting of joint tenancy interest by a donor to an adult daughter, underscoring the importance of meticulous documentation and legal counsel in estate planning and property transfers.

The article was originally published on August 9, 2023. To read it in Law360 Canada, part of LexisNexis Canada Inc., visit: https://www.law360.ca/estates/articles/49564 (subscription required).

Change your mind about a gift? Beware, it may not be reversible

Gifting of real property to adult children is an issue that is commonly litigated. While it is frequently considered in the context of the donor’s estate, the facts in a recent case heard by the Supreme Court of British Columbia and upheld by the British Columbia Court of Appeal in Sandwell v. Sayers, 2023 BCCA 147 are noteworthy.

The donor in this case had made a gift in transferring a joint tenancy interest in his home to his adult daughter for no consideration. The donor, after the gift was made, changed his mind and brought an application before the court to set aside the transfer on the basis that his daughter held her interest by way of a resulting trust for him; in the alternative that the doctrine of unconscionable procurement or unjust enrichment should apply to set aside the transfer.

The summary trial judge found in favour of the daughter concluding that the donor had intended on making a gift to the daughter overriding the presumption of a resulting trust and accordingly there was no basis to set aside the transfer. The trial judge also commented that while the doctrine of unconscionable procurement may still exist in British Columbia (with doubt as to its utility) that there must be limits imposed on the scope of the doctrine and failing to do so would displace the law of resulting trusts which has been used as an effective and reasoned approach to determining when a transaction may be set aside.

The trial judge found that there was no evidence to support a finding that the donor’s daughter acted in a manner to unconscionably procure the gift from the donor or that there was a lack of juristic reason for her enrichment by the gift. In considering all the evidence, the trial judge found that the donor understood the implications of the transfer to his daughter and participated in granting her the gift, particularly through the instructions he provided to the notary public who met with the donor independently and prepared the documentation to effect the transfer.

The Court of Appeal upheld the trial judge’s decision primarily relying on the evidence of the notary public who effected the transfer and who met with the donor independently to explain the implications of a transfer in joint tenancy. The evidence that was vital to the court’s determination that the presumption of a resulting trust was rebutted was the deed of gift and ancillary documents that were executed by the donor confirming that he did not intend a resulting trust to be created by the transfer of legal and beneficial title to the property to his daughter.

The letter from the notary public to the donor indicated that it was his intention to gift to his daughter both legal and beneficial interest in the property and not effect a transfer of legal title only to be held as a resulting trust or a transfer of legal title with right of survivorship upon the death of the donor. This evidence was important in this case to support the court’s reasoning and finding of the donor’s intention to gift the transfer of his home in joint tenancy to this daughter and the donor’s understanding of its implications at the time the decision was made.

The Court of Appeal noted that there is some debate on whether the doctrine of unconscionable procurement has been overtaken by other equitable doctrines, such as the law of resulting trust and undue influence. After the trial judge’s decision was released, advocate John Poyser commented that the doctrine exists and is the law in British Columbia as it has a place in protecting vulnerable people from giving away large amounts of wealth without being fully informed of all the consequences in situations where they intend to make a gift and there is no undue influence, so the equitable doctrines do not apply. The court did not take a position on the doctrine given the lack of factual basis set out by the donor to support the application of the doctrine.

The underlying theme of the applicant’s position on appeal was that after he put his daughter on title to his home as a joint tenant, he developed a fear of being put out of his home by his daughter. However, the Court of Appeal stated that the law does not give him a remedy for changing his mind. The applicant refused to seek independent legal advice with respect to the transfer and his estate planning needs which resulted in consequences to him that he may not have truly desired with respect to his home. Unfortunately, these disputes between parents and their children arise too often without the parties’ ability to resolve them privately and without court intervention.

This decision is a reminder of the importance of ensuring proper legal advice is obtained and time is taken to make decisions with respect to one’s assets and estate planning needs. The thorough notes and communication in the notary public’s file were vital in providing the court with a neutral perspective as to the facts as they arose in this case. Such documentary evidence is vital in assisting the court to determine intention of a donor, particularly when they are deceased.

Please contact the author, Reshma Kishnani at rkishnani@mindengross.com, for more information. 

Re-printed with permission from Law360 Canada (www.law360.ca), part of LexisNexis Canada Inc. originally published on August 9, 2023.

This article is intended to provide general information only and not legal advice. This information should not be acted upon without prior consultation with legal advisers.