In an earlier post, I wrote about the decision of the Supreme Court of British Columbia in Fuller v. Fuller Estate, 2008 BCSC 702, in which the court held that the presumption of resulting trust applied to land. Frederick Fuller had gratuitously transferred land into a joint tenancy with his friend Geramy Harper. He also made a will in which he disinherited his only son, Steven Fuller. After Frederick Fuller’s death, Steven Fuller sued claiming that Geramy Harper held the land in a resulting trust for the estate. He also applied to vary his father’s will pursuant to the Wills Variation Act. Steven Fuller was successful at trial.
On appeal, the British Columbia Court of Appeal, in Fuller v. Harper, 2010 BCCA 421, overturned the trial judge’s decision that Mr. Harper held the land in a resulting trust for the estate. In reaching that decision the Court of Appeal did not disturb the trial judge’s holding that resulting trusts applied to land in British Columbia. The appeal proceeded on the assumption that resulting trusts apply to land.
The Court of Appeal held that on the evidence rebutted the presumption of resulting trust. Frederick Fuller intended to make a gift of the right of survivorship to Mr. Harper when he transferred the title into a joint tenancy. The Court of Appeal considered the following:
1. Frederick Fuller was estranged from his son when he made the transfer, and it was not disputed that he did so to keep the land from falling into his son’s hands after his death.
2. Frederick Fuller first wanted to transfer the land solely into Mr. Harper’s name, but the notary who assisted with the transfer advised him to hold it in a joint tenancy incase Mr. Harper died before Frederick Fuller.
3. Frederick Fuller knew that if he kept the land in his name, it would be available to satisfy a Wills Variation Act claim by his son.
4. Frederick Fuller knew he was dying, and would not be able to benefit from the sale of the land during his lifetime.
The Court of Appeal inferred from this evidence that Frederick Fuller intended to make a gift. The presumption of resulting trust only applies if the court is unable to find the transferor’s actual intention.