In Lor Estate, 2016 ABQB 238, Justice Jeffrey was faced with a common scenario in estates law: Testator mother held house in joint tenancy with daughter. Daughter claims mother intended her to have a right of survivorship. Son says "no". Some evidence points each way. The mother's Will is silent as to the home, naming the daughter, the son and one other family member as residual beneficiaries. Of course, Mother cannot tell us what she intended. Enter Pecore v Pecore and the presumption of resulting trust. The Court found that because the daughter acquired her interest for nominal consideration, the presumption was triggered. It was not successfully rebutted. As a result, the daughter was directed to pay over to the Estate the proceeds of the sale of the residence.
Instructive in the decision is Justice Jeffrey's systematic review of the competing arguments, stating why he would or would not draw the inferences sought. For example:
- The daughter argued that the presumption of resulting trust could not arise because the Estate could not prove a transfer from mother to daughter. She argued that since the home had previously been owned by her father and mother as joint tenants, the gift was actually from her father to her. Justice Jeffrey disagreed, finding that since the transfer was from mother and father to mother and daughter, it was the joint intent of mother and father that mattered, and the evidence was that the mother was the driver behind the conveyance. It was relevant that the mother and father had separated, the father was living abroad and other children gave evidence that their mother did not want their father on title due to a gambling problem that could put the home at risk.
- The daughter relied on several items of evidence relating to the mother's lawyer. Most importantly, the wording of the standard form conveyance document he used when title transferred from mother/father to mother/daughter stated the property was transferred to mother and daughter jointly, "with a right of survivorship". The daughter argued also that the lawyer's notes relating to preparation of the mother's Will did not mention the house, and the lawyer agreed to act for the daughter when she unilaterally sold the house after the mother's death and would not have done so if he had thought it inconsistent with the mother's intentions. The Court was critical of the lawyer's lack of notes and memory, which led to the conclusion that nothing could be inferred from the lawyer's notes or even the choice of wording in the conveyance document vis-à-vis the mother's intent. Importantly, the Court said in respect of the conveyancing document: The wording of the document Wai and Chuk signed to effect the conveyance to Wai and Freda is not dispositive of the issue of their intent. Normally it would be given at least considerable weight in the analysis. I am unable to do so in this case. I have no confidence that the wording on a standard form document used by this particular lawyer in any way reflects Wai's actual intention, for the reasons earlier mentioned. [Decision, para 42]
- The Court relied on evidence that during her life, the mother had requested that the daughter relinquish her title interest and was upset when the daughter refused. This was most consistent with the mother having intended that the daughter hold a legal interest only.
- The Court found it implausible that the mother intended the daughter to receive the entire value of the home and a third of her residual Estate over and above that, particularly given the lack of value in the other assets.
In the end, not only did the presumption of resulting trust provide a way to at least start resolving "he said, she said", it also led to a result that clearly aligned with the Court's sense of justice in the circumstances.