McLean v. McLean, 2012 MBQB 206

• Judge: Simonsen, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: July 10, 2012
• Jurisdiction: Manitoba
• Citations: 2012 MBQB 206;(2012), 281 Man.R.(2d) 264 (QB)

McLean v. McLean (2012), 281 Man.R.(2d) 264 (QB)

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JL.027

Thomas Jeffrey McLean (plaintiff) (defendant by counterclaim) v. Samuel Scott McLean, as Executor of the Estate of Ethel May McLean (defendant) (plaintiff by counterclaim)

(PR 09-01-81263; 2012 MBQB 206)

Indexed As: McLean v. McLean

Manitoba Court of Queen's Bench

Winnipeg Centre

Simonsen, J.

July 10, 2012.

Summary:

A mother's will divided her assets equally among her five children. One son (Jeff) commenced an action against the estate. The estate counterclaimed. The main issue was whether certain assets (property, farm machinery, and cattle) were owned by the estate or Jeff.

The Manitoba Court of Queen's Bench found that the estate was the owner of the disputed assets.

Trusts - Topic 1907

Resulting trusts - General principles - Circumstances when not imposed - A mother's will divided her assets equally among her five children - One son (Jeff) alleged that although title to the property on which he lived was in his mother's name at the time of her death, she held it in trust for him and that he was the beneficial owner - He alleged that the property was subject to a resulting trust on the basis that it was his money that was used to fund the purchase using the proceeds from the sale of a homestead property - He alleged that his mother held the homestead property in trust for him because he held a remainder interest through his father's will - Alternatively, there was a resulting common intention trust or an express (or implied) trust - The Manitoba Court of Queen's Bench rejected the arguments - There was no presumption of a resulting trust respecting the homestead property - Jeff never received a remainder interest in the homestead property because he failed to comply with a condition of his father's bequest - Alternatively, the presumption was rebutted as the mother did not intend to hold a remainder interest in that property in trust for Jeff - Similarly, Jeff had not proven that the mother had the requisite intention for creation of a common intention resulting trust, or an express or implied trust respecting this property - Further, Jeff did not intend that he have a beneficial interest in the homestead property as was required for creation of a common intention resulting trust - As executor of his father's estate, he had transferred title to the property to his mother, without filing a caveat notifying of his beneficial interest - Jeff had a close relationship with his mother - She wanted to assist him by allowing him to live on the property - However, the evidence fell far short of establishing that she held the property in trust for him - See paragraphs 24 to 46.

Trusts - Topic 2105

Resulting trusts - Where property is transferred to one person and the purchase price is paid by another - Rebuttal of the presumption of trust - [See Trusts - Topic 1907 ].

Trusts - Topic 2110

Resulting trusts - Where property is transferred to one person and the purchase price is paid by another - Payment of part of the purchase price - [See Trusts - Topic 1907 ].

Trusts - Topic 2144

Resulting trusts - Intention - Evidence - [See Trusts - Topic 1907 ].

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. 25].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 25].

Ehrmantraut (Bankrupt), Re (2008), 229 Man.R.(2d) 157; 2008 MBQB 140, affd. (2008), 231 Man.R.(2d) 176; 437 W.A.C. 176; 2008 MBCA 127, refd to. [paras. 26, 46].

Chambers v. Chambers, [2012] B.C.T.C. Uned. 82; 2012 BCSC 82, refd to. [para. 28].

Goodfriend v. Goodfriend, [1972] S.C.R. 640, refd to. [para. 45].

Kibsey Estate v. Stutsky, [1990] 2 W.W.R. 632; 63 Man.R.(2d) 34 (C.A.), refd to. [para. 55].

Authors and Works Noticed:

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), c. 2, p. 20 [para. 30].

Counsel:

Gavin M. Wood, for the plaintiff (defendant by counterclaim);

Christopher A. Brock, for the defendant (plaintiff by counterclaim).

This action and counterclaim were heard before Simonsen, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on July 10, 2012.