Lor Estate, 2016 ABQB 238

Court of Queen ’ s Bench of Alberta Citation: Lor Estate, 2016 ABQB 238 Date: 20160427 Docket: ES03 144100 Registry: Calgary Court File Number ES03 144100 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Calgary Estate Name Wai Hing Lor Applicant Eric Ming Kwong Lor Respondents Freda Yuet Ching Lor Nathan Anson Lor (Minor) The Public Trustee for the Province of Alberta _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R.

Jeffrey _______________________________________________________ [ 1 ] This dispute is between siblings, who are beneficiaries to the estate (the “ Estate ”) of their mother, Wai Hing Lor (“ Wai ”). Wai died June 13, 2015. The personal representative of the Estate is the applicant, one of Wai’s sons, Eric Ming Kwong Lor (“ Eric ”). [ 2 ] Wai held legal title to her personal residence (the “ Property ”) jointly with one of her daughters, Freda Yuet Ching Lor (“ Freda ”), who was also one of Eric’s sisters. Freda says the Property became hers entirely, by right of survivorship.

Following Wai’s death, therefore, Freda had the Property registered in her name alone and then sold. [ 3 ] Eric asks the Court to find that the Estate is entitled to the net proceeds of sale of the Property. Eric says that Freda held her interest in the house in trust for Wai and then in trust for the Estate after Wai’s death. In the alternative, Eric asks for an order that Freda pay half of it to the Estate. Freda says the proceeds of sale do not form part of the Estate.

She says the joint interest in the Property, with right of survivorship, was a gift to her. [ 4 ] By Consent Order the net proceeds of sale of the house, in the amount of $331,066.24 (the “ Net Proceeds ”), are being held

pending the outcome of this application. Facts [ 5 ] Wai purchased the Property in 1989 and lived in it throughout the years until her death. She had it registered in her name jointly with her husband Chuk Wah Lor (“ Chuk ”), with rights of survivorship. [ 6 ] Wai and Chuk separated very soon after; in 1990 Chuk returned to Hong Kong to stay. They never divorced. [ 7 ] Wai paid all owning and operating costs of the Property until her death. Freda lived in the Property until 2004. Eric continued to live in the Property with their mother, rent-free, until a month after Wai’s death.

Eric was the last of Wai’s children living with her and he was caring for her through her fight with the cancer that took her life. [ 8 ] In 2006, Wai arranged with an Edmonton lawyer for she and Chuk to transfer the Property from their names jointly to the names of Wai and Freda jointly, for the stated consideration of $1 and love and affection. Chuk signed the transfer in Hong Kong and Wai signed in Edmonton. The lawyer used standard forms for the conveyance, which state that the Property was transferred to Wai and Freda jointly, with a right of survivorship.

The Property was registered jointly in the names of Wai and Freda on May 13, 2006. [ 9 ] Three of Wai’s children suggested that Wai asked Freda many times to transfer the Property back to Wai alone, that Freda refused and that Wai was upset by Freda’s refusal. I accept that evidence as true. Two of those children have no interest in the Estate (the third is a parent to the third beneficiary). [ 10 ] Freda says the joint interest in the Property was a gift to her.

She says it was common for Wai and Chuk, or either of them, to gift significant assets to just one of their children and cited other examples of them having done so. Eric says Freda was unable to corroborate independently any of the cited examples and, in any event, he says the examples were quite different in that they related to Hong Kong assets going in entirety inter vivos to children living in Hong Kong, not jointly with rights of survivorship. [ 11 ] Eric says it was not a gift and that Freda’s interest was subject to a resulting trust.

He says a sister “Tennie” pressed Chuk to move the Property out of his name because debts from his gambling might put it at risk. Eric adduced evidence to that effect from two other siblings, Dylan who resides in Toronto and Janet who resides in Vancouver. I accept that this was Wai’s motivation for the change to registered ownership of the Property. [ 12 ] Freda says Chuk wanted to give his interest to her and that Olivia Gee (“ Olivia ”), one of her sisters who has no interest in the Estate, confirmed this was Chuk’s wish, purportedly because of concerns over Freda’s financial security.

Eric says Olivia’s evidence should not be accepted, or at least it should be ascribed reduced weight, because of her lack of credibility. She had looked after Wai’s finances for many of Wai’s last years, until it was found Wai’s funds were being used for Olivia’s family’s expenses. Olivia said that was her husband’s doing, that she was unaware he was doing it and that she apologized and reconciled with Wai before Wai’s death. Their reconciliation does not mean Wai believed Olivia was unaware of the thefts, only that she accepted Olivia’s apology.

That is hardly surprising from Wai, a mother with cancer facing the finality of her life. Even though Wai earlier selected Olivia to assist with her finances, she did not appoint her in her Will as personal representative. She appointed Eric, despite his limitations. I therefore infer Wai no longer trusted Olivia. Also, she admitted to having reason to apologize to her mother in respect of thefts from her mother.

I am unable to accept as reliable all Olivia’s evidence. [ 13 ] The fact that Wai depended on Olivia or her husband, or both, to assist with routine household financial affairs suggests, however, that Wai did not understand the nuances of property interests and ownership, including when she spoke to a lawyer about conveying the Property and later about preparing a will. She also struggled with the English language. [ 14 ] On March 18, 2015, Wai executed that will (the “ Will ”). The Will says nothing about the Property.

In her Will Wai left one third of the residue of her estate to each of Freda, Eric and a minor grandson named Nathan Anson Lor (“ Nathan ”). [ 15 ] Wai had 5 other surviving children who were not named in her Will. Chuk was still her husband, still separated, and still alive at the time she made her Will, but also was not named as a beneficiary.

He died in Hong Kong just two weeks before her on May 31, 2015, but that is of no consequence to this application. [ 16 ] I infer from her choice of residual beneficiaries in her Will that any differences she may have had with each of them at the time were not so great as to cause her to exclude the three descendants that she felt most in need of a portion of her Estate. [ 17 ] Wai died less than 3 months after signing her Will. At the time, it appeared that the Estate had less than $400 in it.

Freda paid all the funeral costs. [ 18 ] I find that Wai’s assets the day she signed her Will were not materially different than they were on the day of her death. On the day of her death she owned:

a) the Property jointly with Freda,

b) some of the possessions within the Property (the rest belonging to Eric),

c) the contents of a safe deposit box, and

d) a bank account containing $338.73. [ 19 ] The items of monetary value in Wai’s safe deposit box were jewelry, estimated to be worth $4,000 in aggregate, $12,000 cash and proof of cemetery rights. The box also contained documentary evidence demonstrating that Wai paid all owning and operating costs of the Property and various other papers. The contents of the safe deposit box were not known until very recently, some 9 months after Wai’s death. [ 20 ] Following Wai’s death Eric paid no rent to either Freda or the Estate. Eric asked Freda to pay the utilities for the Property, which she did.

Freda is a Buddhist nun living in Toronto, Ontario. [ 21 ] Within 3 weeks of Wai’s death, Freda evicted her brother Eric from the Property and on less than 72 hours’ notice. [ 22 ] Without Eric’s knowledge or consent, Freda disposed of all the contents of the house. She said dismissively that there was “nothing of value” among them. She says she gave Eric an opportunity to retrieve his belongings. He says this came later, after she already destroyed all of Wai’s and some of his belongings. [ 23 ] Freda takes offence to Eric making any mention of these events, since her version of them is not before the Court.

It could have been, she says; her lawyer requested particulars of them within this Application if Eric intended to place the events before the Court. She says no particulars were received. Understandably she concluded he would not be referring to those events. Yet he has, repeatedly.

Freda’s counsel says “there is much more evidence from third parties [...] that will dispute [Eric’s] allegations of Freda’s misconduct on this issue.” [ 24 ] Having not heard the evidence both sides would have placed before the Court on this issue, and there not being opportunity for each party to test that evidence or respond to it, I do not consider any of it or the events as alleged by Eric in my analysis. [ 25 ] An Edmonton lawyer acted for Wai and Chuk in their conveyance of the Property to Wai and Freda.

Regrettably, he has no notes from that retainer. [ 26 ] The same Edmonton lawyer acted for Wai in taking her instructions and preparing her will. He still has some notes from that engagement but, regrettably and surprisingly, they say nothing about the Property. [ 27 ] Freda says I should infer from there being no mention in his notes of any comment by Wai about the Property, that she made no mention of it because it would not form part of her Estate.

But his notes said nothing about most of the matters a prudent counsel would address or satisfy herself on, and record, when taking instructions for preparing the Will, particularly given:

a) Wai’s age and state of health,

b) Wai excluding some of her children from inheriting,

c) Wai’s separation but not divorce,

d) Wai’s co-habitation with an adult child beneficiary, and

e) Wai’s sharing her most significant asset with a non-resident adult child beneficiary. [ 28 ] Therefore, I cannot reliably infer anything about what Wai may or may not have asked about or said or wanted to achieve or been advised when meeting with the lawyer about preparing her Will, beyond the words in her signed Will to a limited extent, given her difficulty with English. [ 29 ] The same lawyer later acted for Freda alone in becoming sole owner of the Property by her purported right of survivorship.

He then acted again for Freda on the subsequent quick sale of the Property. [ 30 ] Freda asks me to infer that the lawyer would not have acted on those subsequent retainers, if they were accomplishing an outcome contrary to Wai’s intentions.

That might be a reasonable inference in respect of a counsel who followed best practices and demonstrated diligence in performing his duties, from which such a demonstrated requisite level of competence might compel the inference, but that did not characterize this particular lawyer’s practice. [ 31 ] Further, on questioning in respect of this application, not that long after having met with Wai to prepare her Will, the lawyer had no useful recollection of any of his interactions with Wai.

He was either intentionally feigning no recollection, perhaps thinking that approach to be in his own best interests, or genuinely had no recollection. Either cause of his recollection deficit undermines the inferences Freda asks me to draw. Analysis [ 32 ] The issue for the Court to determine, therefore, is what the nature was of Freda’s interest in the Property at the time of Wai’s

death. This is a function of what Wai and Chuk intended to convey to her in 2006. [ 33 ] There is no dispute that Freda owned half of the legal interest. The question is whether she also owned half the beneficial interest, with the right to all the Property upon Wai’s passing, or instead held that beneficial interest on resulting trust. For the reasons that follow, I find that she held the beneficial interest on resulting trust for Wai and thereafter for Wai’s Estate. That is, she ever only owned a joint legal interest. [ 34 ] Freda received her interest in the Property from her parents for nominal consideration.

That nominal consideration was, in effect, no consideration.

This triggers the presumption of resulting trust, according to the Supreme Court of Canada in Pecore v Pecore , 2007 SCC 17 , [2007] 1 SCR 795, at para 20 : A resulting trust arises when title to property is in one party’s name, but that party, because he or she is a fiduciary or gave no value for the property, is under an obligation to return it to the original title owner. [ 35 ] The Court also said in Pecore , at paras 24 and 53 respectively: [W]here a transfer is made for no consideration, the onus is placed on the transferee to demonstrate that a gift was intended. [...] the presumption of a resulting trust means that it will fall to the surviving joint [interest] holder to prove that the transferor intended to gift the right of survivorship 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. [ 36 ] Thus, the presumption of resulting trust is rebuttable.

Unless Freda demonstrates a gift was intended, she will be found to hold the beneficial interest in resulting trust for Wai and her Estate. [ 37 ] The Supreme Court in Pecore , at para 44 , dictates that in such circumstances: The trial judge will commence his or her inquiry with the applicable presumption and will weigh all of the evidence in an attempt to ascertain, on a balance of probabilities, the transferor’s intention. …the presumption will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities. [ 38 ] The onus to demonstrate that a gift was intended may be satisfied by the presumption of advancement.

The Court in Pecore , at para 21 said: Advancement is a gift during the transferor’s lifetime to a transferee who, by marriage or parent-child relationship, is financially dependent on the transferor. [ 39 ] But the presumption of advancement is not triggered in this case since Freda was not a minor child at the time of the transfer.

Pecore states, at para 40 : [T]he rebuttable presumption of advancement with regard to gratuitous transfers from parent to child ... [is] ... limited in application to transfers by mothers and fathers to minor children. [ 40 ] Freda argues that the presumption of resulting trust in favour of Wai cannot arise here because the Estate has not proven there was any transfer from Wai to Freda. She says, “the gift was from Chuk to his daughter Freda.” [ 41 ] I disagree. The transfer to Freda was by both Wai and Chuk, to Wai and Freda jointly.

It is Chuk and Wai’s joint intent that determines what was the extent of the interest they conveyed to Freda, not Chuk’s intent alone. In that regard, by all accounts Chuk was not the driver behind the conveyance; he acquiesced to Wai’s wishes. She initiated the cessation of Chuk’s interest, by reason of his gambling, and she initiated the creation of Freda’s interest. She arranged it with the lawyer. Chuk readily relinquished his joint interest, I find, at Wai’s request. Chuk signed the transfer document in Hong Kong and sent it back.

The interest Freda received was not necessarily the same interest Chuk had; it was open to Wai and Chuk to convey to Freda a different interest than Chuk enjoyed. Whatever was Chuk’s interest is not determinative of Freda’s interest. This was not an assignment by Chuk to Freda. [ 42 ] The wording of the document Wai and Chuk signed to effect the conveyance to Wai and Freda is not dispositive of the issue of their intent. Normally it would be given at least considerable weight in the analysis. I am unable to do so in this case.

I have no confidence that the wording on a standard form document used by this particular lawyer in any way reflects Wai’s actual intention, for the reasons earlier mentioned. [ 43 ] Freda did not receive her interest in the Property in 2006 in order to help Wai administer it (see Pecore , at para 47 ). She lived thousands of kilometers away, plus Olivia had been doing that for the most part. If the Property had been conveyed for that reason, then it is very likely would not be found to be a gift. The converse does not follow, however.

Her receiving the Property not to help administer or manage it does not mean that therefore it was a gift. [ 44 ] Freda argued that it was a gift to her because that is what her parents did from time to time. They gave entire significant assets to a single child. The examples offered were of Chuk giving assets, not Chuk and Wai, and, as Eric pointed out, Freda could not support any of the examples by way of evidence. This falls short of the requirements of

section 11 of the Alberta Evidence Act , RSA 2000, c. A-

Section 11 states: In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposed or interested party shall not obtain a verdict, judgment or decision on that party’s own evidence in respect of any matter occurring before the death of the

deceased person, unless the evidence is corroborated by other material evidence. [ 45 ] Chuk’s purported conduct on those occasions is not evidence of Chuk’s and Wai’s intent on the different occasion of the conveyance of a joint interest in the Property to Freda. [ 46 ] The wording of Wai’s Will is relevant only to the extent it reveals Wai’s intent at the time of the transfer years earlier from Wai and Chuk to Wai and Freda.

The out of court statements before and after the transfer that have been attributed to Wai and Chuk are only relevant to the extent they reveal their intent at the time of the transfer from Wai and Chuk to Wai and Freda. The evidence of Wai’s and Chuk’s conduct before and after the transfer to Wai and Freda are only relevant to the extent they reveal their intent at the time of the transfer (see Pecore , at para 59 ). [ 47 ] There is evidence from a non-beneficiary daughter that Wai told her she wanted Nathan to have “part of her house”. Other evidence indicates Wai wanted Eric to be helped financially also.

The only way this could happen under the terms of her Will is if Wai believed her Property would form part of her Estate and dealt with in accordance with her Will. [ 48 ] Freda says the evidence of Wai’s intentions from Eric and from others supporting Eric “cannot stand” because it is inconsistent with Wai including Freda as a beneficiary in her Will. An example is the evidence of Wai’s frustration over Freda not relinquishing back her interest upon request from Wai. [ 49 ] I disagree.

The evidence persuades me Wai intended to name as beneficiaries those of her descendants that she thought would benefit the most from her financial help. Those were Eric, Freda and Nathan. I find that she included Freda as a one-third beneficiary because she thought Freda needed the help. Freda not returning the title to the Property when requested, the evidence of which I accepted, frustrated Wai because it thwarted whatever it was she wished to do with the Property at the time. I have no evidence as to just what that was at that time.

It does not compel the conclusion that she acquiesced to Freda continuing to hold some beneficial interest earlier given. The fact she did nothing further in respect of the Property and then included Freda as a beneficiary in her Will, implies more strongly that Wai’s intent at the time of the conveyance, and her continued understanding at the time of her Will, was that upon her death the entire value of the Property would form part of her Estate. [ 50 ] I consider Wai’s request of Freda to relinquish her interest quite telling.

I find it most unlikely that Wai would approach Freda for return of the interest in her name, as I have accepted occurred, if Wai had earlier intended to give to Freda the beneficial interest. Furthermore, if she had given Freda the beneficial interest earlier and Wai nevertheless asked for it back, Wai would not have been frustrated at Freda’s resistance. Resistance would have been the expected response and so, at most, Wai would have been disappointed, but not “infuriated”, “frustrated” and “upset”, as two witnesses testified.

Wai’s making the request and her reaction after Freda’s resistance are most consistent with her owning all the beneficial interest and wanting to do something different with her Property. They are most consistent, therefore, with Wai having intended Freda receive nothing more than the legal interest. [ 51 ] Freda argues that the “only reasonable conclusion to draw from [Wai’s] conduct is that she acknowledged and approved of Freda’s right of survivorship” to the Property when she “chose to bequeath to Freda the same gift from her estate as Eric.” Frankly, that does not follow.

In any event, in light of Wai’s limited understanding of such matters and my inability to conclude anything from events that involved her lawyer, this was not the only reasonable conclusion. Had Wai or her lawyer been more astute, she may have cleaned this up before her death, for example as Freda now suggests she could have, by severing and perhaps also writing a different will. But they were not. Again, I am unable to reliably infer anything from what was or was not possibly done involving Wai’s (and later Freda’

s) lawyer (to be clear, this was a different lawyer than now represents Freda on this Application). [ 52 ] All the reliable evidence persuades me on a balance of probabilities that Wai at all times thought the Property was all hers, regardless of title registration. Wai probably did not understand it in these words, but Wai understood Freda held the interest in the Property that Wai intended her to have at the time of the transfer in 2006 – only a joint interest in the legal title.

I find that Wai always believed that upon her death the house would be sold and the proceeds divided among the 3 beneficiaries (after payment of her debts and probate costs). More importantly, I find that Wai and Chuk intended Freda to have her name on the title to the Property only, not to receive any beneficial interest. Freda received no beneficial interest other than on resulting trust for Wai. In so finding, I am satisfied that Eric has met the requirements of

section 11 of the Alberta Evidence Act . [ 53 ] Freda says the other assets in the Estate were all that Wai intended would be divided among she, Eric and Nathan. She says the existence of these assets undermines Eric’s argument that the Wai would never have left Freda one third of her residual estate if she believed Freda already had the entire value of the Property. I agree instead with Eric, that Wai having so few other assets in her Estate implies that, at the time of her Will, she thought Freda did not have any beneficial interest in the Property.

This is some evidence that at the time of the transfer Wai believed and intended only a legal interest was being transferred. [ 54 ] Freda’s view is implausible, in all the circumstances. It is implausible that Wai intended to give Freda all the Property by right of survivorship, knew at the time she wrote her Will that Freda would get it all, and then over and above that bequeathed to her a third of everything else, when she knew that everything else trifled in comparison. Everything else amounted to the relatively nominal amounts in the safe deposit box.

Doing so would not help Eric or Nathan at all, as the evidence demonstrates she intended, especially after typical end of life costs and estate administration expenses are covered. [ 55 ] Freda has not discharged her onus of proof that Wai, or that Wai and Chuk, gifted to her the beneficial joint interest. There is no evidence that Wai intended, or that Wai and Chuk intended, to gift the beneficial interest to Freda.

In this case, there is insufficient evidence to rebut on a balance of probabilities the presumption of resulting trust. [ 56 ] In light of this conclusion I need not consider Eric’s request in the alternative, that I order Freda to pay over to the Estate half of the net proceeds of sale on the grounds that the joint tenancy had been severed, into tenants in common, at the time the property was transferred to Wai and Freda.

Conclusion [ 57 ] I therefore grant the application, declare that Freda held the Property on resulting trust for the Estate and order that the Net Proceeds plus interest thereon be paid to the Estate forthwith. [ 58 ] The parties may speak to me regarding costs. If they do, Freda may wish to place before the Court the additional evidence she referred to regarding the alleged destruction of Estate property and of Eric’s property without their consent. Heard orally and by subsequent evidence and written submissions between the 3 rd day of February and the 23 rd day of March, 2016.

Dated at the City of Calgary, Alberta this 27 th day of April, 2016. P.R. Jeffrey J.C.Q.B.A. Appearances: Michael Klaray for the Applicant Chi-Kun Shi for the Respondent, Freda Yuet Ching Lor