Date: 20 Aug, 2021| Author: Fred Streiman

The Presumption of Resulting Trust

Part 2 of 2


Clearly there is a moral to this story, which is if you do not want to find yourself swimming in shark infested waters, do your very best to ensure that there is something in writing and indeed as much as possible in writing to confirm who gets what in the event of a separation.  Everyone enters into a domestic arrangement based upon an expectation of permanence.  But no one is blind to the fact that this is almost as likely not to occur as succeeding.  At the very least, the lawyer acting for the two gentlemen when they bought their home should have made sure that the real estate lawyers reporting letter to them confirmed what was the intention between the two of them should they go their separate ways.  In an ideal world, a formal domestic contract should have been prepared.  It is this writers’ experience this rarely occurs at the start of a first relationship unless a parent insists upon one before they will hand over any money.  At the very least, if one is facing such a situation, speak to a lawyer who has knowledge of these matters for some guidance.  This decision is relevant both in Family Law, and Wills and Estates. In this case, we had the two men able to give their own evidence as to what their intentions and expectations were.   Imagine the dramatic increase of difficulty in proving intention when one of the parties is dead and their estate and executors are attempting to prove the presence or absence of the intention to gift.

What the court is doing is permitting the parties to be lazy and not attend to obvious difficulties at the outset of their relationship.  They should have been alerted simply by virtue of the fact that they were contributing wildly different amounts towards the price of the home.  Surely the psychiatrist, a highly educated individual should have thought as he poured over the years a half a million dollars into a property that there should have been some contract that protected him in the event that he and his partner separated. The court by permitting an after-the-fact rule of equities, such as the presumption, simply encourages litigation, uncertainty and societal difficulty.  We are referring to a 33 year relationship.  If the Court of Appeal asks that one considers the intention of the psychiatrist when he advanced the money, it is not fair to just ask is this a gift or is this a loan?  The question might very well have put to him should be….”If this relationship lasts less than 3 years is this a gift or a loan?”    What if the question is “What is your intention if this relationship lasts 33 years?”   From that perspective, the length of the relationship in this author’s humble opinion was indeed a relevant question, which was answered by the trial judge. The situation is very different if the parties were of unequal bargaining positions.  However, in this case, the party with more money and potentially more education and a greater degree of sophistication was the party who is now alleging the loss. Sorry but the courts are simply enablers of people who are not looking after their affairs.