previous blog post, Emily Clough discussed the British Columbia
Supreme Court decision in
Cowper-Smith v. Morgan, 2015 BCSC 1170,in which the
sons of the deceased successfully set aside a joint tenancy between
the deceased and her daughter on the basis of undue influence
despite the fact that the deceased had received independent legal
advice. The trial judge also held that one son had reasonably
relied on the daughter's representation that he would acquire
the daughter's one-third interest in the deceased's home if
he returned from abroad to care for the deceased as her cognitive
functioning deteriorated. That son had returned from abroad and the
trial judge held he had done so to his detriment; therefore, the
doctrine of proprietary estoppel entitled the son to acquire, and
obliged the daughter to sell to him, the daughter's one-third
interest in the home.
On appeal, the daughter argued that the trial judge erred in
finding that (1) the legal advice the deceased had received prior
to executing the joint tenancy transfers was insufficient to rebut
the presumption of undue influence, and (2) the doctrine of
proprietary estoppel was available in this case.
The British Columbia Court of Appeal allowed the appeal in
The appellate court was unanimous that the legal advice given to
the deceased was inadequate to rebut the presumption of undue
influence and establish that the joint tenancy transactions were
made of the deceased's own "free and informed
thought". Those assets were therefore held in trust for the
estate and subject to equal division between the siblings.
The deceased received legal advice from two solicitors. However,
the appellate court agreed with the trial judge that the advice
received from each solicitor, independently and collectively,
failed to give the deceased the type of "informed advice"
that is required when there is a concern about undue influence:
Both the daughter and the
deceased's brother unduly influenced the deceased to believe
false allegations against the sons;
The first solicitor relied on
information from the brother and the daughter with respect to the
family background and dynamics, much of which the trial judge found
The second solicitor was in
communication with the daughter during his meeting with the
deceased (that had been set up for the purpose of the deceased
receiving independent legal advice) and the content of the
communication was unclear;
Neither solicitor reviewed with the
deceased: (i) any concerns she may have had in giving an equal
share of her estate to her sons, (ii) her reasons for taking such
drastic steps that would effectively disinherit her sons, or (iii)
the merits of doing so when other options might have better
alleviated the risk of future litigation if the deceased was intent
to give more of her estate to the daughter; and
The solicitors should have advised
the deceased to carefully consider whether to proceed with this
course of action which, in the absence of any rational reasons,
might be found after her death not to be just and fair to the
A majority (Smith J.A. dissenting) held that the son had not
acquired a right to the daughter's one-third interest in the
deceased's home by proprietary estoppel, as such a right did
not arise as a result of assurances given by a non-owner of the
property with respect to her future intentions.
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On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
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