Estates and Trusts – Trusts - Resulting trust
Purchaser entered into agreement of purchase and sale with registered owner in 2015 for residential property, but transaction failed to close because registered owner's parents brought claim asserting they were beneficial owners of subject property, which was held in trust for them, and they registered caution and certificate of pending litigation (CPL). Subject property had been family home since its 1995 purchase, with registered owner and sibling P on title as tenants in common, but to which registered owner and her siblings contributed to expenses and mortgage over years. From 1997, registered owner and her parents lived at property, and in 1998, sibling P transferred his interest to registered owner and she assumed mortgage, which was discharged in 2001. Purchaser brought action for specific performance and registered CPL. Parents' claim against registered owner was dismissed. Subject property was purchased primarily with “family funds”, contributed by parents and all siblings, therefore, presumption of purchase money resulting trust applied. However, transfer documents, which were prepared by and with advice of family's solicitor on father's instructions, suggested transfers were intended to be family gift, first to registered owner and sibling P, and then to registered owner alone. Registered owner met onus and proved parents intended in 1998 to give her property as gift. Registered owner was beneficial owner and was entitled to transfer property to purchaser pursuant to agreement of purchase and sale. As registered owner who agreed to sale indicated her intention to complete sale, order for specific performance was unnecessary.
Bao v. Mok (2019), 2019 CarswellOnt 1523, 2019 ONSC 915, R.E. Charney J. (Ont. S.C.J.).
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