Issue 360

HIGHLIGHTS

  • A Justice of the Alberta Court of Queen's Bench has provided a detailed summary of the current Alberta law with respect to the presumption of advancement and the presumption of resulting trust as it relates to a transfer of farmland from a farmer into the joint names of the farmer and an adult child, and the payment of funds into a GIC into the joint names of the farmer and the child. The Justice interprets and applies a number of the principles set out in Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, which, among other things, held that the presumption of resulting trust, not the presumption of advancement, applies to transfers without consideration by a parent to an adult child. The case also rules on the validity of a series of testamentary documents, two of which were held to constitute a single holograph Will. [Editor's note: This case - once again - illustrates the serious consequences which may befall farmers who attempt to create succession plans through joint transfers and home drawn Wills.]. (Lakeman v. Bayne, CALN/2016-027, [2016] A.J. No. 297, Alberta Court of Queen's Bench)
  • A Justice of the Ontario Superior Court of Justice has upheld the validity of a Will in which a farmer who held a one half interest in a farm with his brother, and who left his entire one half interest to his brother rather than his wife. His wife challenged the Wills on the grounds of lack of mental capacity. It was admitted that her deceased husband was a chronic alcoholic. There was medical evidence that he suffered from a "cognitive dysfunction and confusion orientation thought to be due to organic brain syndrome secondary to alcohol abuse". However the Court found that he nevertheless had the requisite mental capacity and that his lifelong intent and expectation was to benefit his brother with the farm which they had operated together. (Dujardin v. Dujardin Estate, CALN/2016-028, [2016] O.J. No. 5763, Ontario Superior Court of Justice)

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