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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.