Dec 20, 2017

Summary of Hilmoe v Hilmoe

Hilmoe v Hilmoe, 2017 SKQB 312 (CanLII)
Wills and Estates – Gifts – Inter Vivos|Wills and Estates – Undue Influence|Trusts – Resulting Trust
The applicant was the sole surviving joint tenant in respect of certain land. The respondents were the adult children of the deceased joint tenant. They registered a miscellaneous interest against the land. The applicant applied for a declaration that she was the sole legal and beneficial owner of the land and an order discharging the respondents’ registered interest. She submitted that the transfer of the land into joint names represented an inter vivos gift. The respondents asserted that their father’s transfer of the land into joint tenancy was without consideration and gave rise to a presumption of resulting trust. They argued, alternatively, that if the transfer was an inter vivos gift, it was a product of undue influence.|HELD: The court granted the requested order. The transfer of the land to the applicant, as joint tenant with right of survivorship, constituted a valid inter vivos gift of both the legal and beneficial interest and not a resulting trust. Although the deceased’s will and other evidence of the parties indicated that he intended to grant the applicant a life interest in the land, the transfer was in keeping with his previous decision to add the applicant as a joint tenant on the title to the home and was consistent with the manner in which he and the applicant treated their other assets. If it had been his intention to merely grant a life interest, he had already done so in his will, which was executed prior to his initiating the transfer of the land. There would have been no need for him to amend his will as the transfer constituted ademption of the testamentary disposition. The Family Property Act and, in particular, s. 50 had no application. The mere existence of a spousal relationship is not sufficient to raise the presumption of undue influence. The evidence did not suggest that the deceased was dependent on the applicant emotionally, physically or financially, nor that the deceased had been confused or mentally infirm. The absence of independent legal advice is not a ground unto itself to justify overturning a gift.