When a gift really is just a gift


Pecore v. Pecore was a very important case for estate lawyers across Canada because it confirmed that a presumption of a resulting trust arises from gratuitous transfers in certain relationships.  Most often, we see it applied in these sorts of situations: parent transfers property (or puts property in joint tenancy) with adult child, siblings of that child then argue that parent didn’t mean to benefit the child the property was gifted to and that in fact the child holds the property on trust for the parent’s estate.  The child who received the “gift” then has to show that the parent intended it to be an actual gift (not always easy to do).

But what about family members other than adult children?  Pecore makes it clear that minor children aren’t subject to a presumption of resulting trust.  But the case didn’t say anything about other categories of minor relatives.

In Wong v. Huang, a great uncle transferred his interest in a house in Burnaby into joint tenancy with his then 12 year old great nephew.  His reason for doing so was his belief it would be the most economical and efficient way of keeping ownership of the property in his family after his death and less expensive than leaving the house in his will.  After entering into a new romantic relationship, the uncle decided that he wanted his half interest in the house back.  After some failed settlement negotiations, he started litigation.  The Court held that there was a presumption of a resulting trust in the circumstances but the presumption was rebutted because of evidence that the uncle intended the transfer to be a gift and didn’t intend that the nephew hold the property in trust for him.  So, even though he later changed his mind, the gift had been completed and the uncle couldn’t require the nephew to return the property to him.