McKendry v. McKendry

[Since I posted this post, the B.C. Court of Appeal has overturned the trial judge's decision. You may read the reasons for judgment in the Court of Appeal here.]


The presumption of resulting trust is a presumption that arises when someone gratuitously transfers property to another. The presumption is that the person making the transfer did not intend a gift, and the person receiving the property holds it in trust for the transferor. This presumption applies both to a transfer into the sole name of another or into a joint tenancy with another. Because it is a presumption, it is open to the person receiving the assets to prove that the transferor did intend a gift, in which case the presumption is rebutted.

The court will generally attempt to determine what the transferor’s actual intention was at the time of the transfer. If it cannot be determined then the presumption applies to most relationships, including a transfer from a parent to her adult child. Although the court may consider things that either the transferor or the recipient say or do after the date of the transfer in determining the transferor’s intent, the court will need to be satisfied that the evidence is sufficient to determine the transferor’s intention at the time of the transfer.

There are cases where the court finds that a parent has transferred property to a child intending to make a gift to the child, but the parent later changes her mind. In such a case the gift still stands, because it was completed at the time of the transfer.

But what if a parent transfers land into a joint tenancy with one of her children without intending to make a gift (or more precisely the court does not find that sufficient evidence of an intention to make a gift), and the parent later decides that she wishes the child to receive the land as a gift on her death by right of survivorship?

This is what occurred in McKendry v. McKendry, 2015 BCSC 2433.

When Mary Alice McKendry died on February 23, 2012, she left surviving her five children, a son and four daughters.  

Mary McKendry had transferred title to her home on W 48^th Avenue in Vancouver into a joint tenancy with her son, John McKendry in 2008. At her death, the home was worth over $1.9 million. There were mortgages registered against the home, which John McKendry had used to finance the purchase of an investment property. Apart from the home, her estate was worth about $465,000.

Her last will, made on December 16. 2010 contained the following paragraph:

7.         I wish to advise my Trustee/s that I have registered my home civically known as [W. 48th] (hereinafter called the “Home”) in Joint Tenancy with my son, John Alexander McKendry.  My son shall receive the Home subject to the Mortgages registered against [the] Home and shall be responsible for payment of the Mortgages as he was the recipient of the mortgage proceeds.

In her will, she left the residue of her estate to her four daughters.

She also signed a letter at the time of her will, stating

I, Mary Alice McKendry, confirm that I wish to cancel any trust agreements or other documents imposing an obligation on my son to share the property I own at [W. 48th] with my other children.  I want my home to be my son’s property on my death absolutely – no strings attached.  I have made this decision after much consideration and I fully understand that this gives my son the majority of my assets.  My house constitutes the majority of my assets.

Following Mary McKendry’s death three her daughters claimed that their brother held his interest in the home in trust for their mother’s estate. He made a counterclaim, seeking to vary the will under the Wills Variation Act in the event that the court found that he held the home in trust for the estate.

At first glance, it might appear that John McKendry had a pretty strong case that he should be entitled to keep the home, and that he did not hold it in trust for his mother’s estate. She had transferred title, and she very clearly expressed in her will and her letter that it was her intention that he receive the home to the exclusion of her daughters.

But there is more to the facts (otherwise, this would be a rather dull post). On two occasions before making her last will, Mary McKendry had instructed lawyers to draw up trust declarations in respect of the home. The first declaration stated that her son held title in trust, and on her death he would receive a third, one of her daughters would receive a third, and the other three daughters would share a one third interest. She signed the declaration, but John McKendry did not. The second trust declaration made in February 2010 provided that on Mary McKendry’s death, each child would be entitled to an equal interest in the home. Again, Mary McKendry signed the trust declaration, but her son did not.

Madam Justice Adair, who heard the trial, found that John McKendry had not rebutted the presumption of resulting trust arising at the time of the transfer of title. In instructing lawyers to prepare, and in signing the trust declarations, Mary McKendry was dealing with the home on the basis that she was able to determine who would be entitled to the home on her death. This was evidence that she considered that she had not made a gift of an interest in the home when she transferred it into a joint tenancy with her son. Madam Justice Adair also found that John McKendry’s testimony did not rebut the presumption.

Madam Justice Adair found that Mary McKendry’s last will and the letter of December 16, 2010 did not reflect her intentions at the time of the transfer, but rather reflected a change in intentions after the transfer.

The next question is whether Mary McKendry gave her son the beneficial interest in the home by right of survivorship in December 2010 when she made her will and signed the letter. Madam Justice Adair held that the will and letter were insufficient to make a gift of the home to John McKendry. She reasoned as follows:

[137]     I will assume that, as of December 16, 2010, Mary intended to make a gift to John of the survivorship interest in W. 48th.  This is what she communicated to Ms. Richter [Mary McKendry’s lawyer who drafted the will] and it is reflected in the December 2010 Will and the December 16 Letter.  However, even if this assumption was correct, I do not agree with Ms. Ducey [John McKendry’s lawyer] that, in the circumstances, nothing more needed to be done to perfect the gift.  Rather, I agree with the submissions of Mr. Lee (for the plaintiffs) on this point.

[138]     Transfers of real property are governed by the Law and Equity Act, R.S.B.C. 1996, c. 253, and the Land Title Act, R.S.B.C. 1996, c. 250, Part 12.  Section 59(3) of the Law and Equity Act requires contracts respecting land to be in writing to be enforceable.

[139]     In order to make a valid gift, the donor must have done everything that (according to the nature of the property) was necessary to be done to transfer the property and make the transfer binding on the donor.  The court will not act to complete an incomplete gift, and a mere promise to make a gift is unenforceable.  See Kooner v. Kooner(1979), 100 D.L.R. (3d) 76 (B.C.S.C.), at pp. 79-80. 

[140]     In my opinion, the Form A transfer, signed by Mary on January 28, 2008, is not sufficient to perfect a gift of the survivorship interest in W. 48th to John, because (as I have found) Mary did not intend at that time to make such a gift to John.  Assuming that, as of December 2010, Mary did intend to make such a gift to John, she did not take the necessary steps to perfect the gift.  The statements in the December 2010 Will and the December 16 Letter are insufficient to create any legal obligation; they are (at best) mere promises to make a gift to John.  I agree with Mr.  Lee [the lawyer for the Plaintiff daughters] that, in order for Mary to make a valid gift to John of the survivorship interest in W. 48th, Mary would have been required to execute a written deed of gift under seal (obviating the need for consideration), confirming an immediate gift of the survivorship interest in W. 48th.  Short of this, there was no legally binding gift, and I so find.

[141]     In summary, I find that John has failed to discharge the burden on him to show that, on January 28, 2008, Mary intended to make an immediate gift to him of the survivorship interest in W. 48th.  If, on December 16, 2010, Mary intended to make such a gift, she failed to take the steps necessary to make a valid, legally binding gift.

[142]     The result is the plaintiffs are, accordingly, entitled to a declaration that John holds W. 48th in trust for Mary’s estate.

Madam Justice Adair then considered John McKindry’s claim to vary the will. She did vary the will, and awarded him a one-fifth share of the estate, from which the amount of the mortgage taken out for his benefit will be set off.