Lorintt v. Boda, (2014) 361 B.C.A.C. 153 (CA)
| Judge | Saunders, Frankel and Goepel, JJ.A. |
| Court | Court of Appeal (British Columbia) |
| Case Date | June 17, 2014 |
| Jurisdiction | British Columbia |
| Citations | (2014), 361 B.C.A.C. 153 (CA);2014 BCCA 354 |
Lorintt v. Boda (2014), 361 B.C.A.C. 153 (CA);
619 W.A.C. 153
MLB headnote and full text
Temp. Cite: [2014] B.C.A.C. TBEd. SE.021
Michael Peter Lorintt, named Executor of the Will of Ferenc Mihaly Boda, also known as Frank Boda, also known as Frank Mihaly Boda (appellant/plaintiff) v. Lajos Ferenc Boda (respondent/defendant) and the Spouse and Issue of Ivan Trap, Deceased, and Reverend Denes Lakatos (defendants)
(CA038912; 2014 BCCA 354)
Indexed As: Lorintt v. Boda et al.
British Columbia Court of Appeal
Saunders, Frankel and Goepel, JJ.A.
September 16, 2014.
Summary:
In early 2000, Boda (then 85) transferred his home in Vancouver from himself to himself and his son as joint tenants (for no consideration) after receiving legal advice given by Porritt. Boda had no other children. His wife was in an extended care facility, where she remained until her death in 2005. In 2006, Boda executed a will which left nothing to the son. Boda died in 2008. Lorintt, the executor of the will, applied for a declaration that the son held the home in trust for the estate. The claim alleged that the transfer of the home was a gratuitous transfer. In the alternative, it alleged the transfer was the result of the son's undue influence.
The British Columbia Supreme Court, following summary trial, dismissed the executor's application. The chambers judge based his decision largely on the affidavit of Porritt, which was generally supported by the affidavits of the son. Boda intended to gift the property to the son. The relationship between the parties was such that the presumption of undue influence did not apply. Alternatively, if the presumption of undue influence did arise, the evidence was sufficient to rebut it. The executor appealed.
The British Columbia Court of Appeal dismissed the appeal.
Fraud and Misrepresentation - Topic 784
Undue influence - Presumed undue influence - General - Circumstances which raise presumption - See paragraphs 74 to 76.
Fraud and Misrepresentation - Topic 801
Undue influence - Presumed undue influence - Rebuttal of - General - See paragraphs 74 to 76.
Fraud and Misrepresentation - Topic 806
Undue influence - Presumed undue influence - Rebuttal of - By the giving of independent legal advice - See paragraphs 92 and 93.
Fraud and Misrepresentation - Topic 824
Undue influence - Presumed undue influence from special relationships - Adult child and elderly parent - See paragraphs 92 and 93.
Gifts - Topic 527
Gifts inter vivos - Presumption against gift - Resulting trust - Rebuttal of presumption - See paragraphs 74 to 76.
Gifts - Topic 578
Gifts inter vivos - Transfer by donor to donee and donor jointly - Intention - See paragraphs 77 to 91.
Gifts - Topic 730
Gifts inter vivos - Transfers in joint tenancy - Survivorship - See paragraphs 77 to 91.
Gifts - Topic 773
Gifts inter vivos - Grounds for invalidity - Undue influence - See paragraphs 74 to 76.
Gifts - Topic 953
Gifts inter vivos - Evidence and proof - Donor's intention - See paragraphs 77 to 91.
Trusts - Topic 1906
Resulting trusts - General principles - Gifts - See paragraphs 74 to 76.
Trusts - Topic 2044
Resulting trusts - Voluntary property transfers - Presumption of resulting trust - See paragraphs 74 to 76.
Trusts - Topic 2144
Resulting trusts - Intention - Evidence - See paragraphs 77 to 91.
Cases Noticed:
Pecore v. Pecore, [2007] 1 S.C.R. 795; 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 60].
Tangerine Financial Products Limited Partnership et al. v. Reeves Family Trust et al. (2013), 339 B.C.A.C. 223; 578 W.A.C. 223; 2013 BCCA 283, refd to. [para. 73].
Icahn Partners LP et al. v. Lions Gate Entertainment Corp. et al. (2011), 306 B.C.A.C. 173; 516 W.A.C. 173; 2011 BCCA 228, refd to. [para. 73].
Orangeville Raceway Ltd. v. Wood Gundy Inc. et al. (1995), 59 B.C.A.C. 241; 98 W.A.C. 241; 6 B.C.L.R.(3d) 391 (C.A.), refd to. [para. 73].
Goodman Estate v. Geffen, [1991] 2 S.C.R. 353; 127 N.R. 241; 125 A.R. 81; 14 W.A.C. 81, refd to. [para. 75].
Clemens v. Clemens Estate, [1956] S.C.R. 286, refd to. [para. 77].
Jeans v. Cooke (1857), 24 Beav. 513; 53 E.R. 456 (Rolls. Ct.), refd to. [para. 77].
Fuller v. Fuller Estate (2010), 292 B.C.A.C. 182; 493 W.A.C. 182; 2010 BCCA 421, refd to. [para. 85].
Counsel:
A.M Gunn, Q.C., and F.G. Hoyer, for the appellant;
W.E. Knutson, Q.C., and V. Reakes, for the respondent.
This appeal was heard at Vancouver, British Columbia, on June 17, 2014, before Saunders, Frankel and Goepel, JJ.A., of the British Columbia Court of Appeal. In reasons written by Goepel, J.A., the Court delivered the following judgment, dated September 16, 2014.
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Cowper-Smith v. Morgan, (2016) 386 B.C.A.C. 287 (CA)
...intention of a party to gratuitously transfer property to another are subject to a deferential standard of review. See Lorintt v. Boda, 2014 BCCA 354 at para. 72. An appellate court may not interfere with the findings and inferences of fact by a trial judge absent palpable and overriding er......
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Dobrowolski v Dobrowolski,
...and law to be reviewed on the standard of palpable and overriding error (see Jensen v Jensen, 2009 ABCA 272 at para 42; Lorintt v Boda, 2014 BCCA 354 at para 72; and Belokon v Krygyz Republic, 2016 ONCA 981 at para [24] This Court has recently confirmed that a decision to dismiss an action ......
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Bostrom v. Bigford, 2019 BCSC 79
...arises where the relationship between the parties gives rise to the potential of domination of one party by another: Boda Estate v. Boda, 2014 BCCA 354 at paras. 75-76. The presumption does not usually apply to transfers from parents to adult children if the parent is in good health and in ......
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Young v. Veselic,
...in Geffen, Wilson and Cory JJ.’s analysis has proven to be the most influential in British Columbia: see e.g., Lorintt v. Boda, 2014 BCCA 354 at para. 75. [68] In British Columbia, the assessment of this issue is also governed by statute. Sec......
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Cowper-Smith v. Morgan, (2016) 386 B.C.A.C. 287 (CA)
...intention of a party to gratuitously transfer property to another are subject to a deferential standard of review. See Lorintt v. Boda, 2014 BCCA 354 at para. 72. An appellate court may not interfere with the findings and inferences of fact by a trial judge absent palpable and overriding er......
-
Dobrowolski v Dobrowolski,
...and law to be reviewed on the standard of palpable and overriding error (see Jensen v Jensen, 2009 ABCA 272 at para 42; Lorintt v Boda, 2014 BCCA 354 at para 72; and Belokon v Krygyz Republic, 2016 ONCA 981 at para [24] This Court has recently confirmed that a decision to dismiss an action ......
-
Bostrom v. Bigford, 2019 BCSC 79
...arises where the relationship between the parties gives rise to the potential of domination of one party by another: Boda Estate v. Boda, 2014 BCCA 354 at paras. 75-76. The presumption does not usually apply to transfers from parents to adult children if the parent is in good health and in ......
-
Young v. Veselic,
...in Geffen, Wilson and Cory JJ.’s analysis has proven to be the most influential in British Columbia: see e.g., Lorintt v. Boda, 2014 BCCA 354 at para. 75. [68] In British Columbia, the assessment of this issue is also governed by statute. Sec......
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Manitoba Eliminates Probate Fees: Considerations For Future Planning
...the parent may be unable to undo a gift of joint tenancy to the child once it has been duly made (see, for example, Boda Estate v. Boda, 2014 BCCA 354); and the child's interest in the property may become subject to a claim by his or her creditors, even while the transferor parent is alive ......