For many people, the family home may be the most valuable asset they own, and the most significant gift they can leave for their loved ones in the event of their death. However, on occasion, someone might make a decision about what should happen to their home should they pass away, only to regret it or want to reverse it down the road. Depending on what has happened in the interim, it may be difficult to do so. This was the situation in a recent decision heard by the Ontario Superior Court of Justice, in which some family members challenged a will and gift of a home within the family.
Mother transfers home to son
The mother and father had three sons, “AF,” “PF,” and “SF.”. SF lived with his parents for a period of time at the family home as an adult. He was living there when his father passed away in 2009.
In 2017 the mother instructed her solicitor to prepare a new will and asked for the home to be transferred to SF for consideration of $1. However, in 2018 SF died, and his two children became trustees of his estate. In 2020 the mother moved into a retirement home, and the parties agreed the home should be sold. Problems arose when it came time to determine how the proceeds from the sale should be handled.
The mother requested that the proceeds of the sale be transferred to her, and that the transfer of the property was not a valid gift, relying on the doctrines of resulting trust and unjust enrichment. She also stated that the transfer was unconscionably procured by SF. Meanwhile, SF’s children maintain that the home was properly transferred to their father and they should receive the proceeds from the sale of the home.
Did the mother intend to gift the property to her son?
The court noted that an inter vivos gift is one that is intended to take effect during the lifetime of the donor, with the intention that the property will not be returned. It requires an intention to donate, sufficient delivery, and acceptance of the gift.
In the matter before the court, the delivery and acceptance of the gift were not in question, leaving just the intent to be determined.
The lawyer who acted for the mother during the gifting of the home stated that she called him to set up the appointment, and that while SF accompanied her to meetings, the lawyer met with her alone. He said her instructions were to transfer the home into SF’s name and leave a will giving him “everything.” This testimony is in line with the will itself, which leaves everything to SF. The lawyer also told the court that he presented the mother with another option, which could have been for her and SF to share title to the home, but she chose not to pursue that route.
Based on the lawyers’ evidence, the court found that the mother appreciated the nature and effect of the transfer of the property. She told the lawyer over the years that she intended to leave everything to SF, and that her other children had already been taken care of financially.
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