Recovering Transferred Property – Vancouver Estate Lawyers
The goodfirm Vancouver estate lawyers can help. Many parents leave the remainder of their estate to their children and loved ones after passing. However, where a parent or loved one transfers property to someone else before passing, any transferred assets will not form part of the estate and will pass outside the will. As a result beneficiaries can find themselves in a situation where they expect to receive a gift under a will only to find out there is nothing left in the estate.
There are options for people who find themselves in this situation and the goodfirm Vancouver Estate Lawyers can help. Under BC’s Wills, Estates and Succession Act SBC 2009 Ch 13 a beneficiary can ask the court permission to start a claim to recover transferred assets for the estate. Before WESA, only an executor could recover any assets or start claims on behalf of the estate. Where a sibling or family member is an executor and also receives assets transferred from a parent, they would have little incentive to sue themselves personally to recover those assets. Section 150 of WESA is the first legislation of its kind in the country designed to help remedy this problem and your goodfirm Vancouver Estate Lawyers have extensive experience in bringing and defending s. 150 claims.
The most recent decision involving section 150 is Gordon Estate (Re), 2018 BCSC 487. In Gordon a childless elderly testator transferred her property and some investments to her neighbours shortly before passing. Her neighbors had assisted and cared for her over the years. In her will, she left the bulk of the residue of her estate to the University of British Columbia to fund research. At the time she passed away, there was little to nothing in the estate to go to UBC because of the transfers. The University petitioned the court for leave to start a claim against the neighbor to recover the assets.
Mr. Justice Milman applied the test for leave for S. 150 previously analyzed by the Supreme Court in Bunn v. Bunn Estate, 2016 BCSC 2146 in holding that UBC must establish that the proposed action is either necessary or expedient:
 Justice Gray held that the terms “necessary” and “expedient” are disjunctive, such that the applicant need only establish that the proposed action is either necessary or expedient. A proposed proceeding will be considered necessary if the personal representative is unwilling or unable to proceed. It may be expedient if it is in the best interests of the estate.
 Justice Gray drew an analogy between s. 151 and the test for leave to commence derivative actions under corporate legislation. Under that test, the court does not attempt to try the case on the merits, but rather determines whether the proposed action has a reasonable prospect of success or is bound to fail. The applicant must establish that the potential for relief in the proposed action is sufficient to justify the cost and inconvenience to the estate of being involved in such litigation and that it is in the best interests of the estate.
UBC argued the proposed action was “necessary” because the neighbor is in a conflict of interest and would have to sue himself in order to recover the transferred assets for the estate and “expedient” because the claim is not bound to fail and UBC stands to bring almost $2 million in assets back into the estate if it is successful. UBC also gave the court evidence that it could fund the lawsuit and pay any cost award should it be unsuccessful. UBC proposed that the transfers to the neighbor could be set aside based on the presumption of resulting trust, lack of capacity or other potential claim such as undue influence which may emerge once the claim progresses. The neighbor argued that the evidence shown to the court showed that the claim of resulting trust, lack of capacity and undue influence was bound to fail and that the action is not expedient or necessary.
Mr. Justice Milman held that UBC should be granted to leave to bring a claim and that the evidence of the deceased’s capacity and undue influence can only be assessed through the discovery process as the claim moves forward.