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.
Read the case: Fuller v. Harper