The deceased gave away his assets before he died – can anything be done?

  • Maybe.  The deceased is entitled to give away his estate, but not all transfers to another person are made with the intention of making a gift – e.g. a transfer of a bank account into joint name may only be to allow another person to pay bills.
  • If a transfer of property is made for less than a fair market price, there is a presumption that the recipient holds the property in trust for the deceased.
  • The court will consider any evidence that shows the intention of the deceased.
  • If the recipient cannot prove that a gift was intended, the gift goes back into the estate.

The Court of Appeal considered this in Fuller v. Harper.  The deceased had a falling out with his son and stopped talking to him.  Before he died he transferred some real estate into his own and a friend’s name, in joint tenancy.  This meant that when he died the entire property would belong to his friend.  The son sued, claiming that the friend held the property on a resulting trust for the estate of his deceased father.

The court said the gift was valid.  The deceased clearly intended to make a gift of the property to his friend when he transferred the property into joint tenancy.  He gave the gift to his long-standing friend to keep the asset out of his estate, so that his estranged son would not be able to make a claim against it.

Gifts can strip the estate of its assets, but sometimes those gifts can be returned to the estate.  We can determine if this is possible.  Contact us.

Read the case:  Fuller v. Harper

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