Agricultural Law NetLetter - Wednesday, January 7, 2015 - Issue 315

HIGHLIGHTS

A Justice of the British Columbia Supreme Court has held that a 1995 transfer of a farm by a father to one of his adult 6 children constituted a gift, based on the transferee's recollection, and a clause in a subsequent Will. The Court concluded that the presumption of resulting trust was rebutted. The case contains a good review of British Columbia law with respect to joint tenancy and presumptions of resulting trust. (Schouten Estate v. Swagerman-Schouten, CALN/2015-001, [2014] B.C.J. No. 3043, British Columbia Supreme Court)

NEW CASE LAW

Schouten Estate v. Swagerman-Schouten; CALN/2015-001, Full text: [2014] B.C.J. No. 3043; 2014 BCSC 2320, British Columbia Supreme Court, J.R. Dillon J., December 9, 2014.

Transfer of Farm Land into Joint Tenancy -- Gifts and Resulting Trust -- Evidence Required to Rebut Resulting Trust.

Renita Sawkins ("Renita") brought an action against her sister, Maria Cornelia Swagerman-Schouten ("Maria") for a declaration that a transfer from their father, Jan Schouten ("Jan") into the joint names of Jan and Maria in 1995 was not a gift, but created a resulting trust pursuant to which the farm was held in trust by Renita to be distributed in accordance with the terms of Jan's Will.

Jan died on May 3, 2011 leaving 6 children including Maria and Renita. Renita was appointed his executor and was the sole beneficiary under his Will.

The land was transferred into the joint names of Jan and Maria in 1995 with the assistance of a local Notary Public. At the time of the transfer, the assessed value of the farm was $398,000.00. Maria testified that her father told her he wanted to transfer the farm to her as a gift. A Will signed by Jan in 2009 contained the following provision:

"I CONFIRM that I hold the lands and premises situate, lying and being at 367 McCallum Road, in the City of Abbotsford, in the Province of British Columbia, being all and singular a parcel or tract of lands and premises consisting of nine (9) Acres, more or less, as a Joint Tenant with my daughter, Maria Cornelia Swagerman-Schouten, and I hereby confirm that joint tenancy and I understand that as a joint tenancy those said lands and premises will form no part of my estate."

Decision: Dillon, J. [at para. 46] concluded that Jan intended to gift the farm to Maria in 1995 by transfer into joint tenancy. The action was dismissed [at para. 47].

Dillon, J. reviewed the British Columbia law with respect to gratuitous transfers, resulting trusts...