What is the test for determining the intent of a party in a gratuitous transfer case?

British Columbia, Canada


The following excerpt is from Krupa v. Krupa, 2008 BCSC 414 (CanLII):

In Pecore v. Pecore, 2007 SCC 17, [2007] 1 S.C.R. 795, the court concluded that the presumption of advancement with respect to gratuitous transfers from parent to child is limited to transfers involving minor children. There is a presumption of resulting trust with respect to gratuitous transfers from a parent to an adult child. That presumption can be rebutted by evidence that the transfer was a gift. Justice Rothstein, speaking for the majority, described the approach to be taken as follows at para. 55: Where a gratuitous transfer is being challenged, the trial judge must begin his or her inquiry by determining the proper presumption to apply and then weigh all the evidence relating to the actual intention of the transferor to determine whether the presumption has been rebutted. It is not my intention to list all of the types of evidence that a trial judge can or should consider in ascertaining intent. This will depend on the facts of each case.

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