The gift before the surgery: Mom knew what she wanted

Reasons for judgement were released earlier this month in the case Hegel Estate v. Logan.

In the family, the father passed many years ago and the wife survived. The couple had 8 children (all adults). The family home was the main asset of the Estate. Title was registered in the mother’s name.

In 2011, suffering from colon cancer, the mother needed surgery. Shortly before the operation, she decided to add three of her children to the title. It seems to have been based largely on need; some of the children enjoyed better financial circumstances than others.

The named Executor, one of the children, challenged the transfer.

Such transfers are now subject to the law of Resulting Trust. So if the transfer happens, the people now on title have to show that their mother intended a gift in transferring title to them. If they cannot, they are held to be Resulting Trustees and have to transfer title back to their mother (or to her Estate, as she passed away some time after the surgery).

In this case, the three children were able to prove that their mother knew what she wanted to do, had the proper capacity, and wanted to gift the property.

Meanwhile, the Executor (Plaintiff) could not prove that the mother was pressured to make the transfer or did not have mental capacity.

The Court held that the children now owning the property could retain title, as their mother wanted to help them (in fact, she provided considerable help to the Executor over her lifetime, and so now wanted to help other children, who were in need as well).

Such Estate-planning decisions are hard to make. It doesn’t appear that the mother had a lot of time to make her decision, but she didn’t seem to need it either. She knew what she wanted, she was able, and she made the decision.

She also had legal advice from a senior lawyer! That helped.

This ad ran in the Richmond Review on June 20, 2014.