2008 A.B.Q.B. 9
Testator transferred land into joint tenancy with daughter. The son had expected to inherit a quarter share. The son argued capacity, undue influence, resulting trust and conspiracy. By 1999, before the mother passed in 2001, the father had supra-nuclear palsy. The daughter invited the father to her home in the fall of 2002 with a friend, notary and witness present and he signed a joint tenancy transfer. He died in 2004.
The testator had capacity. The transferee did not satisfy the court that the presumption of resulting trust should be rebutted. The relevant time being the time of transfer. The boys were to get the land and the girls the insurance. The daughter had attended to file the transfer. No lawyer involved. The transfer was kept secret.
The Court also found undue influence based on:
a) Parent/child relationship;
b) History of signing documents placed before him;
c) No advice;
d) Inconsistent wills;
e) Longstanding knowledge of how estates were intended to be dealt with;
g) Angry insistence of transferee;
i) No independent advice;
j) Involving friends as witnesses;
k) Flawed information given to testator; and
l) Control of execution; vulnerable and dependant transferor.