We have written a number of times on the legal concept of the presumption of resulting trust. Using the search function, you can easily locate them within our blog articles. This subject is unfortunately a great money maker for Estate Litigation lawyers.
One of the client’s of our team of Will and Estate lawyers recently pointed out an extremely common-sense response to the presumption. To remind everyone, the presumption is that the law assumes no one gets anything for free. If someone gives you money, even if they are as close as a parent or grandparent, the starting point is that this was a loan NOT a gift and it is a responsibility of the recipient to prove that it was a gift.
This is all well and good, but how is the average person even to know of this legal presumption, which is derived from the 2007 Supreme Court of Canada case of Pecore v Pecore. In other words, how are you supposed to know that this is the law. Your parents want to gift you $100,000 to help you buy a house, which in today’s real estate market is not an unreasonable fact situation. Unless you have evidence that this was meant to be a gift, other beneficiaries of your parents’ estate can argue that no it was never a gift, it was a loan, pay it back so we can get our share of it.
Our other blog articles talk about the kind of evidence one can put forward to prove that it was a gift, but there is nothing as good as a piece of paper that neither the giftor nor the recipient ever thought would have been necessary. But what lay person would even know that was important? As experienced Will and Estate Lawyers, we cover this issue in our standard will questionnaire.
