Gammon et al. v. Steeves et al., (1987) 83 N.B.R.(2d) 397 (CA)

• Judge: Angers, Hoyt and Rice, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 27, 1987
• Jurisdiction: New Brunswick
• Citations: (1987), 83 N.B.R.(2d) 397 (CA)

Gammon v. Steeves (1987), 83 N.B.R.(2d) 397 (CA);

    83 R.N.-B.(2e) 397; 212 A.P.R. 397

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Ella Steeves and Lewis Steeves (defendants/appellants) v. Leslie Gammon and Naoma Gammon (plaintiffs/respondents)

(188/86/CA)

Indexed As: Gammon et al. v. Steeves et al.

New Brunswick Court of Appeal

Angers, Hoyt and Rice, JJ.A.

November 26, 1987.

Summary:

After a stay in the hospital Leslie Gammon went to live with his niece, Ella Steeves. Mrs. Gammon also moved in with the Steeves shortly thereafter. Mrs. Gammon was later admitted to a nursing home. During his stay with the Steeves, Gammon transferred most of his property to Ella Steeves. The Gammons then brought an action to have their property and over $12,000 in cash returned to them.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (1986), 72 N.B.R.(2d) 239; 183 A.P.R. 239, allowed the action. The court found that the Steeves had a positive duty to suggest alternatives, to ensure that, if the transaction seemed one-sided, benefits to both existed and to ensure that the nature and effect of the transaction had previously been fully explained to the donor by some independent and qualified person. The Steeves appealed.

The New Brunswick Court of Appeal, Angers, J.A., dissenting, allowed the appeal in part. The court discussed the duty of the donee or his lawyer to take sufficient steps to satisfy the court that the grantor was fully aware of the circumstances of his act and that there was no undue influence. The court held that the Steeves failed to rebut the presumption of undue influence.

Fraud and Misrepresentation - Topic 781

Undue influence - Presumed undue influence - General - The New Brunswick Court of Appeal stated that "gifts or transactions involving inadequate consideration will be set aside when the court is satisfied that they were made as a result of undue influence or when the position of the parties is such that a presumption of undue influence will arise. This latter situation can occur in two ways, namely, when the donee acts in a confidential or fiduciary capacity for the donor or when there exists a certain degree of dependence by the donor or the donee. Once the presumption arises, the donee must rebut the presumption of undue influence" - See paragraph 7.

Fraud and Misrepresentation - Topic 801

Undue influence - Presumed undue influence - Rebuttal - General - The Gammons moved in with their niece Ella Steeves because they could no longer take care of themselves - Mr. Gammon transferred his real property to the niece - Mr. Gammon subsequently brought an action to have his property returned to him - The New Brunswick Court of Appeal upheld the decision of the trial judge that the property should be returned to Mr. Gammon - The court held that the Steeves failed to rebut the presumption of undue influence arising from the dependant relationship between the parties.

Fraud and Misrepresentation - Topic 826

Undue influence - Presumed undue influence from special relationship - Nonparental family relationships - Uncle and aunt v. niece - [See Fraud and Misrepresentation - Topic 801 above].

Cases Noticed:

Wheeler v. Wheeler and Wheeler's Estate (1978), 20 N.B.R.(2d) 399; 34 A.P.R. 399, refd to. [para. 6].

Zed v. Zed et al. (1980), 28 N.B.R.(2d) 580; 63 A.P.R. 580, refd to. [para. 6].

Lawrence v. Hachey and Hachey (1982), 39 N.B.R.(2d) 517; 103 A.P.R. 517, refd to. [para. 19].

Lloyds Bank Ltd. v. Bundy, [1974] 3 All E.R. 757, refd to. [para. 20].

Allcard v. Skinner (1887), 36 Ch. D. 145 (C.A.), refd to. [para. 33].

Counsel:

Weldon J. Furlotte, for the appellants;

Michael B. Murphy, for the respondents.

This appeal was heard on May 27, 1987, before Angers, Hoyt and Rice, JJ.A., of the New Brunswick Court of Appeal. The decision of the Court of Appeal was delivered on November 26, 1987, when the following opinions were filed:

Hoyt, J.A. (Rice, J.A., concurring) - see paragraphs 1 to 29;

Angers, J.A., dissenting - see paragraphs 30 to 38.