By: Nigel Bankes

PDF Version: An Unseverable Joint Tenancy: Intentions of the Donor or a Question of Law?

Case Commented On: Pohl v Midtal, 2017 ABQB 711 (CanLII)

In this decision Justice Rita Khullar concludes that when a parent makes an inter vivos gift of interest as a joint tenant in real property to an adult child, that gift may include an irrevocable right of survivorship. While there is a presumption that the donor has retained the power to sever during the donor’s lifetime, this presumption may be rebutted based on the expressed intentions of the donor. In this case the presumption was rebutted. In reaching these conclusions Justice Khullar relies heavily on the decision of the Supreme Court of Canada in Pecore v Pecore, 2007 SCC 17 (CanLII), a case dealing with a joint bank account. Continue reading →

By: Jonnette Watson Hamilton

PDF Version: Clarified: The Rebuttable Presumption of a Purchase Money Resulting Trust

Case Commented On: Singh v Kaler, 2017 ABCA 275 (CanLII)

Singh v Kaler is a useful case for two purposes. First, it clearly describes the work that a presumption does–making useful evidentiary points. Second, it clarifies the test for finding a resulting trust based on the payment of money. Clarification of the law was evidently necessary. According to the majority–Justices Patricia Rowbotham and Sheila Greckol (at para 22)–the trial judge erred in law by applying the test for resulting trust that was set out in cases predating the 2013 Supreme Court of Canada decision in Nishi v Rascal Trucking Ltd, 2013 SCC 33 (CanLII). While there is a dissenting opinion, the dissent is confined to a limitations point; the Court of Appeal is unanimous on the presumption and resulting trusts points. Continue reading →