Canada: Agricultural Law NetLetter - Tuesday, April 7, 2015


  • A Justice of the Alberta Court of Queen's Bench has upheld the transfer of a joint interest in a family farm, with right of survivorship, to one of 5 adult children. The transfer was without consideration. The Court concluded that the child had rebutted the presumption of resulting trust, and that when the transfer was signed the intention was that the quarter section would be transferred as part of an overall estate plan, with the intent that it would be a gift which was made to ensure the family farm remained intact for the next generation. The legal principles and the burden of proof with respect to rebutting the presumption of resulting trust are discussed in the context of farm land. [Editor's Note: The practice of transferring lands into the joint names of parents and children is relatively common. A signed Declaration of Intent to make a gift might avoid litigation and family disputes.]. (Midtdal v. Pohl, CALN/2015-009, [2014] A.J. No. 1173, Alberta Court of Queen's Bench)


Midtdal v. Pohl; CALN/2015-009, Full text: [2014] A.J. No. 1173; 2014 ABQB 646, Alberta Court of Queen's Bench, M.T. Moreau J., October 22, 2014.

Resulting Trusts -- Transfer of Family Farms to the Joint Names of Parents and Children -- Evidence Relevant to Rebutting the Presumption of Resulting Trust for Farm Land.

James Gordon Midtdal ("Gordon") and Vivian Midtdal ("Vivian") brought an action to set aside a transfer of a joint interest in a quarter section of land to Vivian's daughter, Melva Pohl ("Melva").

Gordon and Vivian were married in May, 1974, two years after the death of Vivian's first husband.

Vivan had 5 children by her first marriage, the eldest of whom was Melva.

At the time of marriage, Gordon owned 6 quarter sections of land he had purchased from his father.

Gordon transferred a joint interest in all the quarters Vivian, including the "Home Quarter".

One of the 6 quarter sections was sold, leaving 5 quarter sections of land.

Melva and her husband Dennis Pohl ("Dennis") were the only members of Vivian's family who took up full time farming.

Melva and Vivian were very close.

In 2002, Gordon, Vivian, Dennis and Melva took a number of farm related estate planning courses. They eventually retained the services of a farm planning consultant and prepared an estate plan. The estate plan was never implemented. It provided for the sale of all 5 quarters to Melva and Dennis.

In early 2004, Gordon, Vivian, Dennis and Melva met to discuss the purchase of all 5 quarter sections by Melva and Dennis. Vivian's son Bryce was present at this meeting. He opposed the sale of all 5 quarters but did not oppose the sale of 3 quarters to Melva and Dennis.

In May of 2004, Gordon and Vivian instructed a Wetaskiwin lawyer to prepare documents to sell 3 of the 5 quarter sections to Melva and Dennis at a price of $100,000.00 per quarter. The price was substantially less than market value at the time. Melva and Dennis signed two promissory notes to pay for the land: - one promissory note in favour of Gordon in the sum of $200,000.00, and one promissory note in favour of Vivian in the sum of $100,000.00.

Eight days later, on June 4, 2004, Gordon and Vivian executed transfers of land transferring a joint interest of the Home Quarter to Melva, and a joint interest of another quarter to Bryce. The transfers were prepared by the same lawyer. At the time of these transfers, the Home Quarter had an estimated value of $377,000.00, and the quarter section transferred jointly to Bryce had an estimated value of $190,000.00.

On June 4, 2004, Vivian also made a Will giving her entire estate to Gordon. The Will provided that in the event Gordon predeceased her, her estate would be divided among her other children, Randy, Charline and Donald in equal shares. There was evidence that Gordon made a similar Will, however the Will was not produced.

On August 2, 2007, Vivian executed an Enduring Power of Attorney appointing Gordon as her attorney and Melva as her alternate attorney. Her health was very poor at the time. She was developing Alzheimer's.

There was a falling out between Gordon and Melva. Gordon commenced this action in his name and on Vivian's behalf, relying on this Power of Attorney.

Decision: Moreau, J. dismissed Gordon's action.

Moreau, J. considered a number of issues including the following:

1. The Presumption of Resulting Trust and the Presumption of Advancement:

Moreau, J. concluded that the presumption of resulting trust applied and that Melva had to rebut the presumption by proving a gift of the quarter section was intended. Moreau, J. commented at para. 73 to 75 as follows:

[73] Based on the principles set out in Pecore v Pecore, 2007 SCC 17 (CanLII), a presumption of resulting trust applies to a gratuitious transfer of property. As noted in Waters' Law of Trusts in Canada, 4th ed (Toronto: Carswell, 2012) at 394, a resulting trust arises whenever legal or equitable title to property is in one party's name, but that party is under an obligation to return it to the original title owner, or to the person who paid the purchase money for it. This obligation may arise in situations where the property holder did not give any value for the property he or she acquired. As Waters noted, at page 395, equity assumes bargains, not gifts.

[74] The presumption of advancement does not apply in this case as Melva was an independent child at the time of the transfer. Rothstein J. for the majority of the Court in Pecore, referred, at para 34, to the modern practice of elderly parents adding their adult children as joint account holders so that the children can assist with the management of their parent's financial affairs. In those circumstances, it is dangerous to presume that the elderly parent is making a gift each time he or she puts the name of the existing child on an asset:

The presumption that accords with this social reality is that the child is holding the property in trust for the ageing parent, to facilitate the free and efficient management of that parent's affairs. The presumption that accords with this social reality is, in other words, the presumption of resulting trust.

Mclear v. McLear Estate (2000), reflex, 33 ETR (2d) 272 (Ont SCJ) at paras 40-41 as cited in Pecore at para 34.

[75] As I found that there was no consideration given by Melva for the transfer to her of the joint interest of the Home Quarter, Melva therefore bears the onus of rebutting the presumption of a resulting trust. The standard of proof is the civil standard of balance of probabilities: Pecore, at para 43...

2. Whether Melva Had Rebutted the Presumption of Resulting Trust?

Moreau, J. observed [at para. 102] [relying on the judgment of Rothstein, J. in Pecore at para. 37], that although the presumption of advancement does not apply to adult children, there is no reason why Courts cannot consider evidence relating to the quality of the relationship between parents and children to determine whether the presumption of a resulting trust has been rebutted.

The fact that there was a close relationship between Gordon, Vivian and Melva at the time of the transfer was a material factor.

In addition, although the Estate Plan was abandoned, Gordon's intent that the farm would be kept intact for the next generation was consistent with a gift of a joint interest in the Home Quarter to Melva.

Moreau, J. also concluded [at para. 112] that it was Gordon and Vivian's intention to continue to reside on the Home Quarter until they were ready to move elsewhere and that during this period they would continue to operate the farm, receive the revenue from the oil leases and continue to pay the taxes for the property. The fact that they did so was not inconsistent with the intention that the farm would vest in Melva on their death. The fact that the transfer was signed on the same day that Wills were signed confirmed the intention to make a gift of the Home Quarter, as part of an overall estate plan [para. 113 and 114].

Moreau, J. observed, at para. 107 [relying on Rothstein, J. in Pecore at para. 46 to 49] that the gift of survivorship is not testamentary in nature but inter vivos. It vests when the transfer is made.

Moreau, J. concluded, at para. 118:

[118] In all of the circumstances, I conclude that Melva has rebutted the presumption of a resulting trust. Gordon and Vivian's transfer of a joint interest in the Home Quarter to Melva constituted an irrevocable inter vivos gift and the right of survivorship vested when the gift was made: Fuller v Fuller Estate 2010 BCCA 421 (CanLII) at para. 53.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Minden Gross LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Minden Gross LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions