Midtdal v Pohl, 2014 ABQB 646

Court of Queen ’ s Bench of Alberta Citation: Midtdal v Pohl, 2014 ABQB 646 Date: 20141022 Docket: 1203 14243 Registry: Edmonton Between: James Gordon Midtdal and Vivian L. Midtdal by her litigation representative, James Gordon Midtdal Plaintiffs - and - Melva Pohl Defendant Corrected judgment: A corrigendum was issued on October 23, 2014; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________ I.

Introduction [ 1 ] This lawsuit concerns the characterization of a transfer of title and whether it created a resulting trust or an outright gift. [ 2 ] The Plaintiffs, James Gordon Midtdal, (Gordon), and Vivian L. Midtdal, (Vivian), were married in May 1974, two years after the death of Vivian’s first husband. Vivian had five children by her first marriage, the oldest of whom is the Defendant Melva Pohl

(Melva). At the time of his marriage to Vivian, Gordon owned six quarter sections of land he had purchased from his father. He eventually transferred title to the lands to himself and Vivian as joint tenants. Gordon and Vivian later built a house on the SW 34-45-1- W5 (the Home Quarter). On June 4, 2004, Gordon and Vivian executed transfers of land adding, as joint tenants, Melva to the title to the Home Quarter, and her brother, Bryce Sonnenberg, to the title the quarter

section described as the NW 35-45-1-W1. [ 3 ] The issue is whether, as Gordon maintains, a resulting trust arose from Gordon and Vivian’s transfer of a joint interest in the Home Quarter to Melva such that the beneficial ownership of the Home Quarter remains with Gordon and Vivian, or, as Melva suggests, whether the transfer of a joint interest was an outright gift to Melva. Also in issue is whether Vivian had the capacity in August 2007 to execute an Enduring Power of Attorney in which she named Gordon as her attorney and under which he commenced this lawsuit on her behalf. II.

The Evidence [ 4 ] Gordon has resided on the Home Quarter all his life. He gave Vivian a joint interest in the Home Quarter in 1987. In May 1998, Gordon and Vivian executed a transfer of the Home Quarter to Vivian’s son, Donald Sonnenberg, for $1.00. However, it was never registered. [ 5 ] Gordon and Vivian eventually sold one of the six quarter sections to Gordon’s brother. [ 6 ] Melva and her husband, Dennis Pohl, were the only members of Vivian’s family who took up farming full-time. Dennis and Melva’s farm is a 20-minute drive from the Home Quarter.

Until 2008, when Vivian was placed in a long-term care facility, the two families were in regular communication, if not daily. Gordon and Vivian regularly socialized with Melva and Dennis and they helped each other work their farms. [ 7 ] Dennis Pohl confirmed the close relationship between Melva and Vivian and their very frequent contact by telephone. Gordon acknowledged that Vivian was closest to Melva of all her children and that they spoke regularly on the phone prior to Vivian’s placement in long-term care.

Bryce testified that, in his opinion, Vivian was closest to Donald Sonnenberg, her youngest child, but acknowledged that Vivian and Melva chatted frequently. I find on the basis of the testimony of Gordon, Melva, Dennis, and their son, Curtis Pohl, that the two families were close, that Vivian and Melva in particular enjoyed a close mother-daughter relationship, and that the two families helped each other with the work on their respective farms.

I also find that Gordon tended to minimize the assistance Dennis and Curtis provided to his farm operation as a result of his aggrieved feelings toward Dennis and Melva fuelled by the litigation. The Estate Plan [ 8 ] In about 2002, Gordon and Vivian and Dennis and Melva took a cruise together in which farm-related seminars were offered in the evening, one of which dealt with estate planning. I find that this seminar sparked their mutual interest in estate planning that led the two couples to attend an estate-planning seminar in Camrose following their return from the cruise.

There they met estate advisor Rick Baker. While it is not clear who actually arranged subsequent meetings with Mr. Baker, I find that he met with both couples and that Melva paid his account for him to draw up an estate plan for her and Dennis. [ 9 ] Melva confirmed that Rick Baker prepared the Estate Plan dated April 20, 2003. This Estate Plan proposed (at page 13) that the five remaining quarter sections owned by Gordon and Vivian be divided equally among Vivian’s five children.

The Estate Plan proposed that Melva fund a buy-out of the three quarter sections that would otherwise have gone to her siblings, Charline, Randy and Donald. These three quarter sections were valued in the document at $100,000 apiece. The Estate Plan drew no distinction between the value of the Home Quarter and the other four quarter sections. It proposed that Melva and Dennis fund the buy-out by taking out insurance on the lives of Gordon and Vivian. Under this proposal, Melva would receive lands worth $400,000 (her quarter

section plus the three quarter sections she would purchase from Charline, Randy and Donald) together with $20,000 cash (representing 1/5 th of the remaining assets in Gordon and Vivian’s estates). Charline, Randy and Donald would each receive $100,000 cash in lieu of a quarter section, together with an additional $20,000. The Estate Plan noted (at page 14) that prepaying the buyout of Melva’s siblings through life insurance would cost her and Dennis $8,710 per year until Gordon and Vivian passed away. [ 10 ] Gordon recalled some discussions with Mr.

Baker about having Melva and Dennis take out life insurance policies on Gordon and Vivian; Melva confirmed these discussions as well as the anticipated insurance cost. However, Melva and Dennis ultimately decided not to proceed with the insurance/estate plan. I accept Melva’s testimony that she filed the Estate Plan away and never had occasion to review it again until the litigation commenced.

The purchase by Melva and Dennis of three quarter sections [ 11 ] Melva testified that she recalled attending a family meeting at the home of Gordon and Vivian in early 2004 to discuss the proposed purchase of farmland by her and Dennis from Gordon and Vivian. Bryce and his wife Deb were also in attendance, along with Rick Baker. Gordon indicated he wished her and Dennis to have the five quarters of land he owned and there was a discussion about purchasing life insurance. She recalled Bryce getting heated and Gordon offering the lands to Bryce.

Bryce responded that he did not want them. [ 12 ] Bryce testified that he recalled the family meeting of early 2004 and that a “mediator” was present although he did not recognize Mr. Baker’s name. Bryce recalled having declined Gordon’s offer to sell him the five quarters of land. He was opposed to the sale of all five quarter sections to Melva, but did not oppose her purchasing three quarter sections. He acknowledged that at no time did he and Gordon discuss what the lands were worth or what amount of monies was paid for them. [ 13 ] Sometime before May 27, 2004, Gordon and Vivian instructed Robert K.

Vickerson, a Wetaskiwin lawyer and Vivian’s old

school friend, to prepare the transfers of land relating to the sale of three quarter sections to Melva and Dennis and to their son and his wife, Curtis and Jennifer, at a price of $100,000 per quarter section. Curtis was then and continues to be involved in Dennis and Melva’s farm operation. Mr. Vickerson has since passed away. However, I find from my review of the handwritten file notes on Mr. Vickerson’s file that Gordon and Vivian also instructed him to add Bryce Sonnenberg as a joint tenant with Gordon and Vivian on the title to the quarter

section legally described as the NW 35-45-1-W1, and to add Melva as a joint tenant with Gordon and Vivian on the title to the Home Quarter. [ 14 ] When asked how the price of $100,000.00 per quarter was arrived at, Melva testified that she and Dennis asked Gordon to come up with a price after Gordon offered the three quarters to them. Gordon suggested $100,000.00 per quarter, which was agreed to by the members of Melva’s family after a discussion. Melva testified that $100,000 per quarter

section was what she and Dennis could afford and they would have not paid more than that for the lands. According to net worth information contained in the Estate Plan, the value of two of the quarter sections already owned by Melva and Dennis exceeded the value of the quarter sections Gordon was selling to them by $75,000.

Melva accounted for this discrepancy by reference to the fact that the lands in their area contain more black soil which can be used for crops and cattle, whereas most of Gordon and Vivian’s land is more suitable for pasturing only. [ 15 ] Dennis testified that Gordon was adamant about keeping his family farm as a unit and repeated this many times. Dennis maintained that was the reason why Gordon wished Dennis and Melva to purchase the three quarter sections and to eventually move to the Home Quarter. Dennis testified that if Gordon and Vivian transferred a quarter

section to each of Vivian’s five children, he expected that they would have been sold by the siblings who were not farming. [ 16 ] It is not disputed that there were discussions about Melva and her family paying the purchase price of $300,000 for the three quarter sections in installments as reflected in Mr. Vickerson’s file notes. Ultimately, she and her family members executed two promissory notes prepared by Mr. Vickerson: one in favour of Gordon for $200,000.00, and one in favour of Vivian for $100,000.00. Each secured payment of $10,000 per year until fully paid, together with 3.00% interest per year.

All payments have been made on the two promissory notes. [ 17 ] Gordon testified that, at the time, he could have obtained twice the price he received for the three quarter sections if he had sold them on the open market. Reports prepared in 2014 by a certified appraiser as to the value of each of Gordon and Vivian’s five quarter sections in 2004 and 2012 were tendered at trial on Gordon’s behalf without objection from Melva.

In relation to the three quarter sections that Gordon and Vivian sold to Melva and her family members on May 27, 2004, their 2004 and 2012 values were appraised as follows: 2004 2012 NE 34-45-1: $180,000 $210,000 NE 35-45-W1 $200,000 $210,000 SE 34-45-W1 $180,000 $210,000 [ 18 ] Melva testified that she and Dennis were present when Gordon and Vivian signed the transfers of land in relation to the three quarter sections at Mr. Vickerson’s office. Melva recalled Mr. Vickerson looking at Gordon and Vivian and asking each of them: “Is this what you want to do?” Melva confirmed that Mr.

Vickerson did not ask any of them to sign an acknowledgement that he was acting in a conflict of interest position, nor did he suggest that any of them seek independent legal advice on the sale transactions. [ 19 ] Gordon testified that he told Melva that her inheritance on his estate consisted of the extra money not being paid for these quarter sections.

While Gordon’s testimony in this regard was not specifically put to Melva, given her testimony as to the value of these lands compared to the value of Pohl farmlands, I find it unlikely that she would have considered the sale of the three quarters to have constituted her inheritance. [ 20 ] Having considered the testimony of Gordon, Melva and Dennis, I find that it was Gordon who set the price for each of the three quarter sections he and Vivian sold to Melva and her family members at $100,000.00, without appraisal and without any improper influence from Melva and Dennis.

I do not accept Gordon’s testimony that he told Melva at the time of the sale that the extra money not being paid for the three quarter sections was her inheritance on his estate. If that were the case, there would have been no basis for him to have executed a further Transfer of Land, only eight days later, adding her as a joint tenant to the Home Quarter without any cash payment from Melva.

The transfer of joint interests to Melva and Bryce [ 21 ] On June 4, 2007, Gordon and Vivian executed transfers of land creating a joint interest for Melva with them in the Home Quarter, and doing the same for Bryce in the NW 34-45-1-W1 quarter. [ 22 ] Certified appraisals (conducted for the purposes of trial in 2014) of each of these quarter sections disclosed the following 2004 and 2012 values: 2004 2012 NW 34-45-1-W1 (joint interest to Bryce) $190,000 $230,000 SW 34-45-1-W1 (joint interest to Melva) 377,000 414,000

[ 23 ] Gordon testified that transferring the Home Quarter into the joint names of himself, Vivian and Melva on June 4, 2004 went against his “inner feelings” at the time. He stated that on their way to town to execute the transfers of land, Vivian told him she would leave him if he did not do so and that she reached for the car door handle. He stated that she was going to jump out of the car (proceeding at full speed) and that he held her arm to prevent her from doing so. [ 24 ] I find Gordon’s recollection as to the lengths to which Vivian went to ensure that Melva and Bryce each received a quarter

section to be unreliable since he never mentioned at his questioning before trial Vivian’s alleged attempt to leave the car at full speed. I find that the transfer of the joint interest in each case reflected Vivian’s wishes and Gordon was not forced by Vivian to comply. Rather, he simply went along with her wishes. [ 25 ] Gordon testified that as he, Vivian and Melva were leaving Mr. Vickerson’s office after executing the transfer of land in the Home Quarter, Melva told him: “Anytime you want my name off title you let me know and I’ll take it off.” Melva denied at trial that she ever said this to Gordon.

She testified, first, that she was not at Mr. Vickerson’s office on June 4, 2004, and second, that she was unaware of the transfer to her of a joint interest in the Home Quarter until she received a tax notification in July 2004 in relation to the property. Her testimony in this regard is, to some extent, supported by the transfer documents themselves.

Whereas the transfer of land executed on May 27, 2014 in relation to the three quarter sections sold to Melva and her family members bears the signature of Dennis Pohl on the Affidavit of Transferee, Gordon, not Melva, signed the Affidavit of Transferee on the transfer of the Home Quarter on June 4, 2004. [ 26 ] I find that Gordon’s testimony is unreliable as to the details of his meetings and discussions with Mr. Vickerson relating to the execution of the transfers of land on May 27 and June 4, 2004. For example, despite Mr. Vickerson’s handwritten notes on file referring to the transfer of a quarter

section each to Melva and Bryce respectively as joint tenants, Gordon denied any recollection of having discussed these matters with him. [ 27 ] When it was put to Gordon under cross-examination that he offered to Melva one-third of the oil lease revenues he was receiving on the Home Quarter, Gordon responded that he did not recall this.

However, when asked whether Melva told him: “You and Vivian keep that money,” he responded, “maybe she did.” [ 28 ] Another example of Gordon’s unreliable memory is his testimony that he and Vivian made their Wills “long before the land sale matters came up, a couple or three months.” This is not borne out by the evidence as Vivian’s will was executed on the same day as the transfers of land in which Bryce and Melva each received a joint interest in a quarter section. [ 29 ] Yet another example occurred in Gordon’s cross-examination on whether he discussed with Mr.

Vickerson a letter agreement to reflect Gordon and Vivian’s retention of a beneficial interest in the two quarter sections to which Melva and Bryce had been respectively added as joint tenants. Mr. Vickerson’s file contains a handwritten note stating “Gordon can transfer other lands to kids letter agreement saying done for Estate purposes & he is retaining beneficial interest.” When asked if it was possible he did not remember such a conversation with Mr.

Vickerson, Gordon’s responses changed from a flat denial (“he never mentioned that to me”), to “I don’t recall it anyhow.” [ 30 ] Gordon also described in his testimony an incident when Dennis tried to kill him by using the cattle chute on Dennis’s farm as a “booby trap.” When Gordon, who was positioned next to the chute, grabbed a rope attached to the cattle chute gate, an overhead pipe dislodged and struck his head. The wound required four stitches.

I find that this was an accident and that Gordon’s perception of this event is coloured by his aggrieved feelings toward Melva and Dennis. [ 31 ] Finally, I also observed that when referred at trial to documents that had been presented to him earlier that day, Gordon was at times unable to recall and appeared confused about the contents of these documents that had already been reviewed with him. [ 32 ] Given these concerns, I am unable to rely on Gordon’s memory of his dealings with Mr.

Vickerson and comments he testified he made to Melva in connection with the sale to her and the other Pohl family members of the three quarter sections, or comments he testified that Melva made to him in connection with the transfer to her of a joint interest in the Home Quarter. [ 33 ] Melva stated that there were discussions at the time with Gordon and Vivian about Melva and Dennis eventually moving into the Home Quarter, continuing to farm it, and using the Home quarter to winter the cattle before sending them back to Curtis’ land to calve them out.

Dennis testified that he believed at the time that Gordon’s motive for offering the three quarter sections of land for sale was to keep the property as a family farm unit. [ 34 ] Melva testified that, in keeping with the plan to eventually move into Gordon and Vivian’s home, she and Dennis moved out of their farm home in 2010 into a rented home where they currently reside on a farmyard originally owned by Dennis’s uncle.

Curtis and his wife, who by then had three children and were living in a mobile home, moved into Melva and Dennis’ home and continue to reside there. [ 35 ] Gordon denied that his intention in selling the three quarter sections to Melva and Dennis related to his and Vivian’s shared wish that Melva and Dennis would ultimately move onto the Home Quarter. It was put to him that his wish at the time was to have somebody move into the house and farm the land once he and Vivian would need care and to move off the farm.

He responded “not at that time,” stating that this is something “they [Melva and Dennis] cooked up themselves.” [ 36 ] I do not accept Gordon’s testimony in this regard. While he testified that Dennis and Melva bought the farm for pastureland and water, he acknowledged it would have made more sense for them to buy lands closer to the Pohl farm for those purposes. Dennis pointed out that Gordon and Vivian’s farm is really one large unit as one-third of the main barn sits partly on the Home Quarter and partly on one of the quarter sections he and Melva purchased in 2004.

The well for cattle and silage pit are located on the same quarter section. I find that Gordon discussed a plan with Melva and Dennis involving them eventually moving into the home on the Home Quarter and farming it and the three quarter sections they were purchasing as a unit. I find that the transfer of a joint interest in the Home Quarter to Melva in June 2004 was consistent with that wish as was Melva and Dennis’s interim move to a rental home. [ 37 ] Bryce testified that he did not have any conversations with Vivian or Gordon as to why they transferred a joint interest in one

of their quarter sections to him. [ 38 ] In her will dated June 4, 2004, the same date she executed the transfers of land adding Melva and Bryce as joint tenants respectively on the Home Quarter and another quarter section, Vivian devised her entire estate to Gordon. Her Will provided that in the event Gordon predeceased her or died within 30 days of her death, her entire estate was to be divided among her children Randy, Charline and Donald in equal shares.

Her Will made no mention of Melva and Bryce. [ 39 ] Gordon could not recall whether he signed a will on the same date but acknowledged that he might have instructed Mr. Vickerson to prepare a “mirror-image” Will for him. He was unable to locate a copy in his papers and no will in his name was found bearing that date in Mr. Vickerson’s files. [ 40 ] After the transfer of the Home Quarter to himself, Vivian and Melva as joint tenants, Gordon continued to reside on the land, farm it, pay property taxes and home-related expenses, and receive oil lease revenues.

He has never reported a disposition or sale of the Home Quarter on his tax return. [ 41 ] As for the quarter

section Gordon transferred to the joint names of himself, Vivian and Bryce in June 2004, Gordon testified that he continued to farm these lands, take the profits from the crops and pay property taxes until he transferred the quarter

section to Bryce (without payment) in 2010. Gordon denied that he transferred title to Bryce alone at Bryce’s request. The Affidavit of Value sworn by Bryce reported the value of the land in his opinion to be $100,000.00. While Gordon continues to farm the land without charge, Bryce pays the property taxes and receives the lease revenues. [ 42 ] Bryce testified that Gordon came to him in 2010 and indicated that in case something happened to him and he died he did not want to have a “mess left.” Gordon arranged for the transfer of title to the quarter

section to Bryce’s name alone. Bryce confirmed that he did not take possession of the quarter section, and did not pay property taxes or receive oil lease revenues until the title was transferred into his name alone. Bryce acknowledged having an agreement with Gordon that Gordon could farm the land as long as he wished at no charge. [ 43 ] Gordon executed his current Will on September 17, 2010, naming Charline, Randy and Donald as his beneficiaries.

Paragraph 5 of his will states: The reason that I have not left any part of my estate to my daughter, Melva Grace Pohl, or my son, Daniel Bryce Sonnenberg, is that I have provided for them during my lifetime. [ 44 ] Dennis testified that his and Melva’s relationship with Gordon started deteriorating in 2010. By this time, Vivian was already in long term care and Dennis and Melva had moved into the rented house. [ 45 ] Gordon testified that in about 2011, he, along with Bryce and Donald, attended Melva’s home to ask her to remove her name from the title to the Home Quarter.

He testified that Melva became irate, Dennis called him all kinds of names, and they left at Bryce’s suggestion. Bryce and Donald confirmed this in their testimony. Melva acknowledged that Gordon asked her at the meeting to remove her name from the title and that the meeting became heated. [ 46 ] Melva testified that while she considered Gordon’s request to have her name removed from title, she believed, based on advice she had received from her accountant, that she would be charged tax on a capital gain accrued over the seven years since the original transfer of a joint interest to her.

Whether transfer of joint interest to Melva was gratuitous [ 47 ] Melva testified that she was 17 years old, married and expecting her first child at the time of her father’s death in 1972. She recalled that on the day of her father’s funeral, her mother came to her and advised that, as she was still a dependant (although not living at home), she was entitled to some of the insurance money payable on her father’s death. When asked by her mother if she was going to take the money, she said “no,” appreciating that her mother still had four children living at home.

She testified that she could have used the money as she was living in very basic accommodation with no running water, central heating or bathroom facilities. She testified that she and her mother never discussed this subject again.

When she learned of the transfer to her of a joint interest in the Home Quarter, she surmised that Vivian “probably knew” that she had waived receipt of some of the insurance proceeds in 1972 and that this was “probably a consideration” in adding her name to the title to the Home Quarter. [ 48 ] Counsel for the Plaintiff noted that in the read-ins of Melva’s responses to questioning of April 5, 2013, she testified that she did not pay money for the ownership interest in the Home Quarter transferred to her in June 2004.

When asked if it was a “gratuitous transfer,” she responded that it was. [ 49 ] Bryce testified that he had no knowledge of any settlement monies paid in 1972 arising from his father’s death or of any waiver by Melva of settlement monies. He was 16 ½ years of age at the time of his father’s death and was aware that Canada Pension Plan paid his mother $50.00 per month for a child under sixteen and $55.00 per month for a child of 16 or over.

He recalled that his father had life insurance through his work with an oil company, which would have been based on twice the employee’s annual salary. [ 50 ] Gordon testified that he had no knowledge of any insurance monies paid when Vivian’s first husband died.

While Gordon and Vivian maintained separate bank accounts during their marriage, he recalled that Vivian did not bring much money into their marriage and asked him for money for groceries within a week of the wedding. [ 51 ] Having considered the evidence of Melva and Bryce as to the family’s circumstances at the time of their father’s death, I do not accept Melva’s suggestion that her mother added her as a joint tenant in 2004, 32 years after her father’s death, because of an alleged waiver of insurance proceeds.

Melva had no memory of what she would have been entitled to receive by way of insurance proceeds at the time. At best, her testimony in regards to the consideration for adding her name to the title to the Home Quarter was speculative as

her mother never again discussed the insurance proceeds in all the years of their close relationship. I find that there was no consideration for the transfer of a joint interest in the Home Quarter to Melva on June 4, 2004.

Vivian’s mental capacity at the time of August 2, 2007 Enduring Power of Attorney [ 52 ] On February 3, 2005, Vivian executed a Personal Directive appointing Gordon as her agent and Melva as his alternate. [ 53 ] The Personal Directive contained an acknowledgement signed by Vivian that she had read the Personal Directive, or had it read to her, and understood its nature and effect and the explanatory notes attached to it.

Gordon had no recollection at trial of this document. [ 54 ] On August 2, 2007, Vivian executed an Enduring Power of Attorney appointing Gordon as her attorney and Melva as her alternate attorney. Vivian signed an acknowledgement similar to the one she signed for the Personal Directive. Gordon did not recall attending with Vivian at Mr. Vickerson’s office to sign this document. [ 55 ] Gordon testified that Vivian started to decline mentally in about 2004. She became forgetful and abruptly cut short visits from neighbours. He recalled that Vivian stopped driving in 2005.

According to home care records and Melva’s recollection, her driver’s license was not taken away until December 2006. Gordon testified that when he and Vivian travelled to Norway in 2006, he was concerned about leaving her alone outside the men’s room at the airport for fear she might wander off.

He stated that after the Norway trip, she required his presence “24/7.” He arranged for home care services for her and then respite care that increased over time from 4-5 days to 7-10 days. [ 56 ] Gordon described Vivian’s state of mind in August 2007 (when the Enduring Power of Attorney was executed) as “very poor.” She recognised him, he conversed with her and she responded “to a certain extent,” but she “didn’t really know what I said.” She would become confused when he asked her to retrieve an item from a cupboard. [ 57 ] Bryce acknowledged that Melva was in charge of Vivian’s care arrangements while he took care of Gordon’s.

He recalled that Vivian was starting to fail in 2007. [ 58 ] Melva testified that she was very involved with Vivian’s care from the point when she and Gordon got health workers involved in her care. She stated that Vivian started showing signs of mental decline at the end of 2004. By 2006, she was very agitated. Melva recalled attending a doctor’s appointment in December 2006 when Vivian’s driver’s license was taken away. Melva testified as to her belief that by that time, Vivian was not capable of making her own decisions regarding most things in her life.

By early 2007, Vivian was showing up at her home with Gordon two to three times per day and would not let Gordon out of her sight. [ 59 ] Turning to the nursing and respite care records relating to Vivian’s mental decline, a “short-term assessment/needs domain/care plan” dated April 24, 2005 indicated under “other concerns/risk”: “dementia - husband aware of services.” The form also reported “? Early Alzheimer confusion.” [ 60 ] A Community Outreach Nurse Assessment dated October 4, 2005, reported as follows on Vivian’s mental status: Pleasant and cooperative to interview. Speech logical and flow normal.

Able to maintain focus. Spoke in complete sentences with some word finding difficulty noted. Adequate fund of long-term knowledge. Able to express and comprehend ideas adequately. No perceptual disturbance noted. Mood and affect appropriate for topics of conversation... SMMSE (sic) 23/30 oriented to person, place and most aspects of time. Registration and attention tasks adequate. 0/3 on short term recall.

Difficulty with naming a pencil and finding the word she needed. [ 61 ] The assessment noted that the MMSE (Mini Mental State Examination) in March 2005 was 26/30, that the FAB frontal assessment battery score was 11/18, below 13 being indicative of severe frontal dysfunction.

Vivian was unable to understand directions regarding putting the numbers around an offered circle to make it look like a clock. [ 62 ] According to the assessment, Vivian’s family noted that she was asking questions frequently, repeating stories, refusing to cooperate at times, becoming angry, withdrawn, demanding, afraid to be left alone, suspicious at least once per week and having thoughts that people were stealing from her.

The assessment described Vivian’s agitation and pacing along with frustration and decreased insight. [ 63 ] The assessment concluded with the following impression: This lady is gradually declining in her cognition of the past couple of years and her family are now accessing services with home care and cognitive assessment as are unsure of a diagnosis. ... Her functional status is quite good still and manages in her familiar environment with cues and persons to assist as necessary. She was

still driving at the time of the assessment. [ 64 ] Gordon acknowledged that in a referral form dated August 24, 2006 for the Community Outreach Nurses’ Program, he reported Vivian as having dementia with a decline in health and mental status. [ 65 ] A Community Outreach Nurse Assessment dated September 27, 2006 noted Vivian to be talkative with decreased insight into her deficit. She had difficulty finding words and was repetitive in conversation.

Cognitive tasks were not completed and her cognitive deficits were described as “severe.” She was reported to have had a noticeable cognitive decline following the assessment of the year before with her insight being “severely impaired with thoughts that she can still cook, drive, etc.” It was recommended that her driver’s licence be withdrawn, that her Personal Directive and Enduring Power of Attorney be activated, and respite services provided to her husband. [ 66 ] There was discussion with Gordon noted in a narrative record of the home care program on November 30, 2006 in relation to the activation of the Personal Directive and the need for Vivian to stop driving, along with a request for a further assessment “for a more definite diagnosis.” In a June 15, 2007 narrative record entry, it was noted that Vivian exhibited increased anxiety and a risk of wandering.

At the time, Gordon was accessing respite care. [ 67 ] A narrative record entry dated June 21, 2007 reported on a home visit the day before in which Vivian was described as alert and answering appropriately, albeit she did not remember her day program attendance the day before. A Community Health Assessment form completed on June 21, 2007 by a registered nurse reported in the “diagnosis” area of the form: “dementia, cognitive decline prior to 2005.” It went on to report that Vivian needed cuing and lacked insight into her condition. She could find the bathroom on her own, ate, dressed, gowned, and bathed.

As to her personal care, the form stated that she was independent and did not require support for eating, dressing, grooming, bathing, toileting, indoor mobility, outdoor mobility and transferring.

The box relating to memory reported altered attention/concentration and the form noted a risk of wandering. [ 68 ] In a July 20, 2007 respite care application, the following comment appeared under “favourite activities”: “likes to visit with people.” The application reported that she was not able to manage her own medications or to wash herself but was able to serve herself, eat by herself, dress and undress herself without assistance, go to the bathroom by herself, manage her own incontinence and supplies, and get in and out of bed without assistance.

A narrative record from the Good Shepherd Home, where Vivian was in respite care, reported on September 3, 2007 that she was talking with residents at coffee and seemed to be having a good time. That evening, however, she was upset about being there and was crying. She was also noted to be playing cards.

In January of 2008, she was reported to have been up from 0400 to 0700 and later that week, wandering in the hallway and had to be redirected back to bed. [ 69 ] A referral form for the Memory Lane Adult Day Program dated July 30, 2007 reported that Vivian was oriented as to person and time, but not place, and was independent in relation to toileting, mobility, eating, dressing/grooming, transferring and self-care. She was able to interact with individuals in groups.

At that time, there was no indication of wandering and there was no entry checked for wandering, aggressive, agitated, suspicious, resisting treatment, or hoarding behaviours, although she was noted to be occasionally sad or depressed. It is noted that in a narrative record of August 17, 2007, the family expressed some concerns about Vivian’s personal care and inability to manage it.

However, the note went on to describe bathing once per week and monthly nail care completed by the RN. [ 70 ] A February 20, 2008 referral/consultation home care form, reported “severe dementia” under “Relevant History (Please include diagnosis & current treatments/medication).” [ 71 ] Vivian’s physician signed a Declaration of Incapacity under the Personal Directives Act on March 3, 2008. With Melva’s help, he arranged for her placement in a long-term care facility in Ponoka on May 8, 2008. According to Gordon, Vivian currently spends 99% of the time in a wheelchair, sometimes recognizing him and sometimes not.

She has no understanding of these proceedings. III. Findings [ 72 ] My findings of fact are summarized as follows: 1. Prior to Vivian moving into a long-term care facility, the two couples, Gordon and Vivian and Dennis and Melva, were close. In particular, Vivian and Melva enjoyed a close mother-daughter relationship and the families helped each other with the work on their respective farms. 2. Mr. Baker met with both couples and Melva and Dennis asked him to draw up an estate plan for them. 3.

Melva filed away the Estate Plan after it was mailed to her and she never had occasion to review it again until the litigation commenced. 4. Gordon set the price of $100,000 for each of the three quarter sections he and Vivian sold to Melva and her family members without an appraisal and without any improper influence from Melva and Dennis. 5. I reject Gordon’s testimony that he told Melva at the time of the sale of the three quarter sections that the extra money not being paid for the three quarter sections was her inheritance on his estate.

6. Gordon did discuss with Melva and Dennis a plan involving them eventually moving into the home on the Home Quarter and farming it as a unit with the three quarter sections they were purchasing. The transfer of a joint interest in the Home Quarter to Melva in June 2004 was consistent with that plan. 7. The transfer of the joint interest to Melva in the Home Quarter reflected Vivian’s wishes. Gordon was not forced by Vivian to accept her wishes; however, he went along with them. 8.

I reject Melva’s testimony that Vivian added her as a joint tenant on the Home Quarter in 2004 because of an alleged waiver of insurance proceeds she said she provided to her mother 32 years earlier. Accordingly, there was no consideration for the transfer of joint title to Melva on June 4, 2007. 9. I reject Gordon’s testimony that Melva told him at Mr. Vickerson’s office after he signed a transfer of land transferring to her a joint interest in the Home Quarter in June 2007 that she would take her name off the title to the Home Quarter anytime Gordon wanted her to do so.

I find that neither Melva nor Dennis was in attendance at Mr. Vickerson’s office when Gordon and Vivian signed the transfer of land and when Vivian, and likely Gordon as well, executed mirror-image Wills that excluded Bryce and Melva from benefiting from their estates. IV. Presumption of Resulting Trust [ 73 ] Based on the principles set out in Pecore v Pecore , 2007 SCC 17 , a presumption of resulting trust applies to a gratuitous 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), 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 in 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 . I will nevertheless deal with the arguments of counsel in the order in which they were presented. V.

Position of the Plaintiff [ 76 ] Counsel for Gordon maintains that Vivian had the capacity required under the Powers of Attorney Act , RSA 2000, c P-20 and its amendments (the Act ), to execute the Enduring Power of Attorney naming Gordon as her attorney on August 2, 2007. The Enduring Power of Attorney was executed before a well-experienced lawyer familiar with Vivian as they had dealings throughout the years prior to 2007.

She had previously named Gordon as her attorney in 1995 when she executed an Enduring Power of Attorney since lost, but similar to the Enduring Power of Attorney in evidence at trial that Gordon executed in 1995. The requirement of a Certificate of Legal Advice was, however, removed from the Act prior to Vivian signing the 2007 Enduring Power of Attorney.

While there were certainly concerns about her ability to manage her daily living, the notes of those providing care services to her confirmed Vivian’s strong attachment to Gordon consistent with a desire that he manage her affairs. [ 77 ] Counsel for Gordon next submitted that the circumstances surrounding the transfer of land that transferred a joint interest to Melva in the Home Quarter are not consistent with an outright gifting.

From the appraisal evidence, it is clear that the three quarter sections were sold to Melva at a significant discount, Dennis and Melva having received lands worth $560,000.00 for $300,000.00 on very favourable terms of financing paid over 10 years. Counsel pointed out that the Estate Plan provided, at page 5, that the price of $100,000 per quarter

section was a “realistic figure to sell to a family member.” This was an acknowledgment, along with the fact that Dennis and Melva’s lands were valued by them at $75,000 more, that Melva and her family members were already receiving a “sweetheart deal” from Gordon on the sale properties alone. [ 78 ] The transfer was simply part of an estate planning decision. It was a choice made by Vivian and Gordon to avoid using their wills in relation to the disposition of their land but rather the vehicle of survivorship under a joint tenancy.

This estate planning decision is not sufficient to discharge the presumption of a resulting trust. Had there been an intention to gift the interest, there would not have

been a note by Mr. Vickerson on his file discussing the maintenance of a beneficial interest in the transferors despite the transfer. [ 79 ] Counsel for Gordon submitted that if Gordon and Vivian’s beneficial interests in the Home Quarter are preserved, Gordon is still at liberty to allocate his estate in a way he thinks is fair. There are all sorts of reasons why property is transferred outside an estate.

Here there is no evidence that what Gordon and Vivian intended was a testamentary disposition. [ 80 ] Counsel for Gordon argued that these circumstances can be distinguished from those in Pecore as, in that case, a child was in a state of financial need at the time of the transfer of investments by her father into joint accounts with her. There was evidence from a lawyer who had actually discussed the transfers with the father and advised him that the transfer would, without more, operate as a gift.

In the present case, Melva was financially independent from Gordon and Vivian at the time of the transfer of the joint interest to her and Gordon denied that there were any discussions with Mr. Vickerson about the legal implications of the transfer. [ 81 ] Finally, counsel for Gordon pointed out that Melva tendered no expert evidence as to any tax implications associated with a transfer back to Gordon and Vivian of her joint interest. This lack of evidence is telling against her position that such tax implications exist. VI.

Position of the Defendant [ 82 ] The Statement of Claim states that Vivian is represented in these proceedings by Gordon pursuant to the terms of an Enduring Power of Attorney dated August 2, 2007. The Amended Statement of Defence denies that Vivian had capacity to grant an Enduring Power of Attorney to Gordon and hence the authority to commence the action on Vivian’s behalf. [ 83 ] It is Melva’s position that at the time that Vivian executed the Enduring Power of Attorney in August 2007, Vivian was mentally incapable of understanding its nature and effect.

A close review of the documents relating to her care reveals that there were acute concerns regarding Vivian’s mental state throughout 2006 and 2007. It is Melva’s position that Vivian was incapable of executing the document giving Gordon the right to pursue this action on her behalf and so the Enduring Power of Attorney must be declared void. [ 84 ] Counsel for Melva next argued that the appraisals performed on the quarter sections in 2014 are simply hindsight and an attempt to rewrite history.

Some thought was given to what the land was worth: there was a family meeting to discuss the sale of the lands to Melva and Dennis, and there was no suggestion at the time by any family member that Gordon was being cheated out of his lands. [ 85 ] Counsel submitted that Gordon and Vivian’s intentions must be considered as of the time of the transfer of the joint interest in June 2004 to Melva. Pecore had not yet been decided. At the time the transfer was signed, the law provided that the presumption of advancement applied unless it could be established that beneficial interest remained with the transferor.

This was the reason Mr. Vickerson appears to have discussed the prospect of a letter agreement preserving the beneficial title in Gordon and Vivian, as evidenced by his handwritten note. However, there is no evidence that Gordon and Vivian acted on his advice. [ 86 ] Counsel for Melva also pointed out that Mr. Vickerson’s handwritten notes did not suggest that the transfer was being orchestrated by Melva and Dennis, as it stated: “ Gordon wants to add Son and Daughter as jt to two other ¼’s” The contents of these notes were reproduced in a letter dated March 22, 2004 from Mr. Vickerson to Mr.

Parker, the Pohls’ accountant. [ 87 ] Counsel for Melva submitted that Gordon offered Melva a share of the oil revenues consistent with an intention to gift; Melva was not questioned on this issue. When it was put to Gordon in cross-examination that he told Melva that a third of the oil cheque was hers, he responded that he did not recall that. When asked if Melva told him, “you and Vivian keep the money,” he responded, “maybe she did.” There is no evidence, however, from Melva that Gordon offered her one-third of the oil revenues.

Accordingly, I do not find that this allegation was proven. [ 88 ] Counsel for Melva argued that the gift to Melva crystallized on the execution of the transfer to her of the joint interest. To find otherwise would alter the provisions of Vivian’s 2004 will which, given her current incapacity, is, together with the transfers dated June 4, 2004 of a joint interest in the two quarters to Melva and Bryce, the last formal reflection of her intentions. VII.

Discussion Did Vivian have the capacity to execute the Enduring Power of Attorney on August 2, 2007 ? [ 89 ] It is clear from the testimony of Gordon and Melva along with the care records I have reviewed that Vivian’s mental health deteriorated gradually over time starting in about 2005. The issue is whether she was capable of appreciating the nature and effect of the Enduring Power of Attorney she signed on August 2, 2007. [ 90 ]

Section 3 of the Act contains the test for determining the validity of an enduring power of attorney: Incapacity at execution 3. An enduring power of attorney is void if, at the date of its execution, the donor is mentally incapable of understanding the nature and effect of the enduring power of attorney. [ 91 ] Misener DCJ, in Godelie v Public Trustee, 1990, CarswellOnt 497 (Ont Dist Ct) discussed the factors to consider when determining whether the donor had the degree of mental capacity required to execute a general power of attorney. At para 33, he referred

to Re K; Re F , [1988] 1 All ER 358 (Ch D) , where Hoffman J determined that an enduring power of attorney was valid if, at the time of its execution, the donor understood the nature and effect of the juristic act by which the power was conferred. This is essentially the test reflected in

section 3 of the Act. [ 92 ] In Re K; Re F , the donor was suffering from “pre-senile dementia.” While at times lucid and capable of making decisions with full understanding of what she was doing, at other times she would become confused and suffer a loss of memory. Hoffman J held that it was not necessary for the donor to be capable of managing his or her property and affairs on a regular basis. Capacity to execute the power of attorney would be established if the donor understood that (

a) the attorney would be able to assume complete authority over the donor’s affairs; (

b) the attorney could do anything with the donor’s property that the donor could have done; (

c) that the authority would continue if the donor became mentally incapable; and (

d) would in that event become irrevocable without confirmation by the court. [ 93 ] Hall JA, in Egli (Committee of) v Egli , 2005 BCCA 627 , referred to the principles in Re K; Re F , noting, at para 34, that the capacity of the donor will always be a factual decision for a trial court based on the evidence. [ 94 ] Concerns expressed in the home and respite care documents and by both Gordon and Melva in their trial testimony centered on memory issues, Vivian’s clinginess to Gordon, her agitation, and her anxiety.

However, the narrative record entry dated June 21, 2007, approximately six weeks before Vivian executed the Enduring Power of Attorney, referred to her dementia and cognitive decline since 2005, but also reported that she was able to independently perform what I would consider to be a significant number of activities of daily living.

The narrative record also described her as “alert and answering appropriately,” although displaying short-term memory problems. [ 95 ] The July 20, 2007 respite care application, which was completed less than two weeks before Vivian executed the Enduring Power of Attorney, also referred to activities of daily living Vivian was able to complete and that her favourite was visiting with people.

As of July 30, 2007, a referral form for the Memory Lane Adult Day Program described Vivian as being oriented as to person and time, not place, and independent in relation to toileting, mobility, eating, dressing/grooming, transferring, and her self-care. She was also interacting with individuals in groups. [ 96 ] A release form attached to a community program document to maintain persons with Alzheimer’s disease in the community was signed by Gordon Midtdal on June 19, 2007.

Counsel for Melva argued that in doing so, Gordon was acting on behalf of Vivian because she did not have the capacity to sign legal documents. However, the document clearly set out that it could be signed by the caregiver or client’s representative. Clearly, Gordon was Vivian’s caregiver at the time. [ 97 ] Gordon also signed an authorization to release medical information dated July 30, 2007 on behalf of Vivian.

I find that Gordon’s execution of this document is no more than marginally probative of her capacity at that time to execute the Enduring Power of Attorney as there was no evidence of the circumstances surrounding Gordon’s execution of the release. For example, it is unclear if there was an urgent need to access medical information. The release was signed at a time when it appeared that Vivian maintained some functionality and some ability to engage socially. [ 98 ] It was suggested to Gordon during cross-examination that Mr.

Vickerson executed the 2007 Enduring Power of Attorney with Vivian because she was a childhood friend and he thought he was doing them a favour, to which Gordon responded “yes.” I found Gordon to be easily suggestible when leading questions were put to him. In any event, he is not able to speak to Mr. Vickerson’s motivations at the time. It was clear, however, that Gordon and Vivian had been long-standing clients of Mr. Vickerson. It was also clear that Vivian trusted and relied on Gordon. Her 2004 Will made him her Executor. Her 2005 Personal Directive made him her agent.

Naming him as her attorney in 2007 was consistent with these earlier actions which were not challenged. [ 99 ] There is no direct evidence available as to Vivian’s capacity when she attended on Mr. Vickerson on August 2, 2007 to execute the Enduring Power of Attorney as she currently lacks capacity and Mr. Vickerson has died.

The nursing and respite care records I have reviewed describe varying degrees of confusion at various times, but also report a level of functionality in activities of daily living that made Vivian’s continued residence at home feasible, albeit with nursing assistance and respite care. [ 100 ] Having considered the testimony of Vivian’s family members and the nursing and respite care records, I find that Vivian understood the nature and effect of the Enduring Power of Attorney she executed on August 2, 2007 and consequently, Gordon had the requisite authority to commence these proceedings on her behalf.

Having made this finding, I need not address the legal effect of Gordon having appointed himself as Vivian’s litigation representative in March 2014. Has the Defendant rebutted the presumption of a resulting trust? [ 101 ] Having determined that the transfer of title to the Home Quarter

section was gratuitous, Melva, as an independent adult child, bears the onus of proving that the intention at that time of Gordon and Vivian was to gift a joint interest in the Home Quarter to her. [ 102 ] In addressing whether the presumption of advancement should apply on the basis of parental affection for their children, Rothstein J made the following comments in Pecore , at para 37 : I do not agree that affection is a basis upon which to apply the presumption of advancement to the transfer.

Indeed, the factor of affection applies in other relationships as well, such as between siblings, yet the presumption of advancement would not apply in those circumstances. However, I see no reason why courts cannot consider evidence relating to the quality of the relationship between the transferor and transferee in order to determine whether the presumption of a resulting trust has been rebutted.

[ 103 ] Accordingly, my finding that there was a close relationship between Gordon and Vivian and Melva and Dennis at the time the transfer of land giving her a joint interest in the Home Quarter was executed can be considered, among other factors, in determining whether in all of the circumstances surrounding the execution of the transfer, the presumption of resulting trust has been rebutted. [ 104 ] As to whether there are suspicious circumstances giving rise to a concern that the transfer of a joint interest was voluntarily given, Dennis and Melva were present at Mr.

Vickerson’s office when Gordon and Vivian signed the transfers of land in relation to the sale of the three quarter sections to them. Although obtaining independent legal advice would have been the preferable course of action, I accept Melva’s testimony that Mr.

Vickerson confirmed with Gordon and Vivian individually that selling the quarter sections was what they wanted to do before each executed the Transfer of Land. [ 105 ] I have found that Dennis and Melva were not present when, approximately eight days later, Gordon and Vivian executed the transfers of joint interests in the two remaining quarter sections to Bryce and Melva respectively.

I do not accept Gordon’s contention that Vivian forced him to do so or that Dennis and Melva were forcing the issue. [ 106 ] Although paid for by Dennis and Melva, the Estate Plan, which would have seen no funds transferred to Gordon and Vivian from their lands during their lifetime, was abandoned in favour of an arrangement that provided them with sale proceeds over time plus some interest. A transfer of one quarter

section to each of Vivian’s five children ensued as I accept Dennis’ testimony that this was consistent with Gordon’s wish to keep the farm through a further generation. [ 107 ] In Pecore , Rothstein J, at paras 46-49 , referred to the situation where the transferor placed assets into a joint account with the transferee with the intention of retaining exclusive control of the account until his or her death, at which time the transferee would take the balance through survivorship.

He noted that one of the difficulties in these circumstances is that the beneficial interest of the transferee appears to arise only on the death of the transferor, leading some judges to conclude that the gift of survivorship is testamentary in nature and must fail as a result of not being in proper testamentary form. He went on to find, at para 48, that: the rights of survivorship, both legal and equitable, vest when the joint account is opened and the gift of those rights is therefore inter vivos in na t ure.

This has also been the conclusion of the weight of judicial opinion in recent times. [ 108 ] Rothstein J noted, at para 50, that it is the nature of a joint account that its balance will fluctuate over time. He stated that the gift in these circumstances is the transferee’s survivorship interest in the account balance, whatever it may be, at the time of the transferor’s death, not any particular amount. He noted, at para 51, that treating survivorship in these circumstances as an inter vivos gift has found favour in the United Kingdom and Australia.

He emphasized the following, however, at para 53: [T]he presumption of a resulting trust means that it will fall to the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to whatever assets are left in the account to the survivor.

Otherwise, the assets will be treated as part of the transferor’s estate to be distributed according to the transferor’s will. [ 109 ] In determining whether the presumption of resulting trust has been rebutted, Rothstein J observed, at paras 55-59, that the type of evidence that the trial judge can and should consider in ascertaining intent will depend on the facts of each case. It can also include the conduct of the parties during the years after the transfer, providing this evidence is relevant to the intention of the transferor at the time of the transfer.

The reliability of this evidence must be assessed and its weight determined, guarding against evidence that is self-serving or that tends to reflect a change in intention. [ 110 ] Another factor that can be considered in ascertaining the transferor’s intention, in the case of joint bank accounts, is the control of the accounts following the transfer. Rothstein J pointed out, at para 63, that the transferor’s retention of his or her exclusive beneficial interest in the account during his or her lifetime may support the finding of a resulting trust, but may be of only marginal assistance.

The dynamics of the relationship may be such that the transferor makes the management decisions. The transferor may be more experienced with the accounts and this would not negate the beneficial interest of the other account holder. [ 111 ] In this case, Gordon and Dennis were independently operating their respective farms.

There is no evidence that Gordon and Vivian’s decision to place the lands in joint names was motivated by Gordon’s need for more direct assistance in his farming operation in addition to what Dennis and Curtis Pohl were already providing. [ 112 ] I find, based on the testimony of Melva and Dennis, that it was Gordon and Vivian’s intention to continue to reside on the Home Quarter until they were ready to move elsewhere. During that period, Gordon and Vivian took the benefits from the farm operation and the oil leases and continued to pay the taxes on the property.

This was similar to the situation in Pecore , where the father, who had gratuitously added his daughter’s name as joint holder of his investment accounts, continued to control the funds in the accounts and paid income tax on the earnings on the investments until his death. The trial judge in that case found that doing so was not inconsistent with an intention that the balance remaining in the accounts would belong to his daughter on his death.

His finding was not disturbed on appeal. [ 113 ] I am of the view that the timing of the transfer is a strong indication that the two quarter sections transferred to Bryce and Melva as joint tenants respectively had already been dealt with and would not form part of the estate. This occurred eight days after disposing three quarters by way of sale.

It was also on the same day Vivian executed her will which left her assets to Gordon, and in the event of his death, to three of the five children (excluding Bryce and Melva). [ 114 ] If it was their intention to have the jointly-held properties distributed through their estates, one would have expected some evidence of a discussion between Gordon and Vivian and Mr. Vickerson about insulating the transfer from the presumption of advancement. Such an expectation is reasonable because the transfer occurred at a time when the presumption of advancement in the case of gratuitous transfers was the law.

Gordon testified that there was no discussion about this despite the presence on Mr. Vickerson’s file of a handwritten note alluding to a letter agreement. [ 115 ] This situation can be distinguished from that in Reid Estate v Reid , 2010 ONSC 2320 , where the testatrix transferred title to her home into joint tenancy with her younger son less than one month before she died, having two years earlier made a will leaving her

estate equally to her two sons. The trial judge in that case found that the testatrix, by the transfer of a joint interest, had only secured part of an overall estate plan which also involved her buying a house for her older son. Until that was done, she would not have intended to give up control over the equity in her own home. The transfer’s purpose was only part of an estate plan and the effect of it was to save probate fees.

There was also nothing in the circumstances to cause the testatrix to favour one son over the other. [ 116 ] This was not, as was the case in Reid Estate , a partially completed estate plan. Three quarter sections of land were sold to Melva without evidence of any serious objection at the time by her siblings. She was the only child actively involved in farming. Keeping Gordon and Vivian on title reflected their intention to remain in control of the property while living there.

Lands were gifted to her and Bryce and the remaining assets, which Gordon valued at trial at $692,000 (Gordon) plus $76,000 (Vivian) were to be divided by will among the remaining three children.

Bryce and Melva were excluded from sharing in those assets, as each had received a joint interest in the unsold quarter sections. [ 117 ] While appraisals now indicate that the land holdings Melva received were worth more than Gordon or Vivian priced them at in the Affidavits of Value, I am of the view that they made their decisions freely, and in Gordon’s case, to honour Vivian’s wishes and to maintain his family’s farm through the next generation. [ 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 at para 53 . VII. Conclusion [ 119 ] For the reasons given, the Plaintiff’s action is dismissed. The parties should arrange to speak to costs within 30 days if an agreement as to same cannot be reached. Heard on the 10, 11 and 12 th day of September, 2014. Dated at Edmonton, Alberta this 22 day of October, 2014. M.T. Moreau J.C.Q.B.A. Appearances: Louis M. H. Belzil, Q.C. Justine C.

Lapointe for the Plaintiffs Rick H. Hemmingson for the Defendant

_______________________________________________________ Corrigendum of the [Judgment Type] of The Honourable Mr. Justice _______________________________________________________ Justine C. Lapointe is added as co-counsel for the Plaintiffs. In Paragraph [35] Merva was corrected to read “Melva”.