Transfering title: a case of ‘whogotit’

Reasons for judgement were released recently in the case Bautista v. West. The question for the Court was whether a title transfer by the now deceased father was a gift.

Under existing law, a transfer of title to land from a parent to an adult child, without other evidence, is presumed to be held by the adult child in trust for the parent.

However, if the adult child can prove that the parent intended a gift, the gift stands.

In this case, the parent divorced in 1997, having signed a separation agreement. In 1998, he met a woman with whom he had two children. In 2003, they signed a cohabitation agreement, under which the new spouse would not acquire an interest in the deceased’s real estate and other assets.

In 2004, the deceased transferred his interest in his home to his two sons from his previous marriage. He then designated his pension and life insurance benefits to his two children from the new spouse.

The new spouse launched a matrimonial action in 2005, prompting the deceased to move out of the house. Her action was unsuccessful. She received nothing.

The deceased died in 2012, and the spouse then launched another action claiming an interest in his Estate and that the title transfer by the deceased in 2004 was not intended as a gift. That was also unsuccessful.

Given the documents that the new spouse signed, and the planning and conduct of the deceased, it was clear to the Court that the deceased intended a gift of the title to his sons. The sons received the title to the property.

The case affirms, in my opinion, that there will never be a substitute for good planning.

This ad ran in the Richmond Review on April 10, 2015.