Case study: Lorintt v. Boda, 2014 BCCA

  • April 02, 2015
  • Heather Hogan

Note: This is a condensed version of a more in-depth article that was originally published online at Whaley Estate Litigation website.

On March 5, 2015, the Supreme Court of Canada dismissed ,with costs, the application for leave to appeal the decision of the British Columbia Court of Appeal in Lorintt v. Boda.[1] In Lorintt, the BCCA dismissed the appeal of the chambers judge’s holding that the presumption of resulting trust had been rebutted, and that the relationship between the donor father and the donee son was did not give rise to the potential of undue influence.
Estate litigators and elder law practitioners can rely on Lorintt for guidance on rebutting the presumptions of undue influence and resulting trusts as they apply to transfers of real estate. Solicitors may also find it useful to consider the steps taken by the drafting solicitor in this case, as it was his evidence that defeated the claims for resulting trust and undue influence.

The transfer

The father was 85 years old when he transferred the property with the assistance of his solicitor, Mr. Porritt, in February of 2000. Mr. Porritt’s office was contacted by the son, and Mr. Porritt met with the father and the son together. The father had intended to transfer the property outright to his son, but when Mr. Porritt presented the father with other options, the father chose to transfer the property to joint tenancy, instead.

Mr. Porritt observed that English was not the father’s first language. However, although Mr. Porritt routinely used the services of translators with his ESL clients, he did not do so in this instance because he was certain the father understood the advice given.

About 10 days after the property was transferred, the father returned to Mr. Porritt’s office and asked Mr. Porritt to transfer the property back to the father, solely. Mr. Porritt told the father what steps were required, and sent the father a copy of the necessary paperwork to be completed by the father and the son. The completed paperwork never materialized.

The father’s capacity, and the executor’s involvement

The son had no contact with the father after the transfer. About four years later, the son was contacted by the Office of the Public Guardian and Trustee (OPGT). The father had dementia, had fallen, and the OPGT was the committee of the father’s finances. At the father’s request, the son brought a petition to become the father’s committee, and was so appointed. They subsequently argued, at around that time the executor took the father to a new lawyer, Mr. Menkes, for the purpose of cancelling the committeeship, to make a will, and to sever the joint tenancy.

The father was assessed by Dr. Sloan who was of the opinion that father had testamentary capacity, but Dr. Sloan was unable to determine whether the father could manage his own financial affairs.

In August of 2006 the father made a will (his first) which favoured the executor and left nothing to the son. That same year, the father applied to appoint the executor as his committee, but the court chose to appoint the PGT instead.

The father died in 2008.

Resulting trust

The chambers judge reasoned that the resulting trust issue turned on the father’s intentions at the time of the transfer in 2000. In this regard, he favoured the evidence of Mr. Porritt, and found that the father’s comments between 2004 and 2008, while the father’s capacity was at issue, were of no evidentiary value.[2]

On appeal, the executor submitted that the father’s efforts to reverse the transfer were improperly discounted by the chambers judge, and that consideration should have been given to the statements made by the father in 2006, at a time when the father was medically determined to have testamentary capacity.

The Court of Appeal confirmed that evidence of intention must be contemporaneous with the transaction in question, and that oral statements made by the deceased at various points after the transfer were of no evidentiary value.[3]

Undue influence

With respect to the executor’s submission that the transfer was invalid because it arose from undue influence, the chambers judge found, on the basis of Mr. Porritt’s evidence, that the father transferred the property while acting of his own free will. In particular, the father had attended Mr. Porritt’s office to transfer the property outright to the son but, when presented with Mr. Porritt’s suggested alternatives, chose the joint tenancy instead. Finally, the chambers judge found that the evidence did not lead him to conclude the relationship between father and son was one that gave rise to the presumption of undue influence, and if he was wrong in that regard, the chambers judge found that the presumption as rebutted by the above evidence.

The Court of Appeal confirmed the rebuttable presumption of undue influence as set out in Geffen v. Goodman, and found that there is no basis to interfere with the chambers judge’s findings that the relationship between the parties was not one which gave rise to the potential domination of one party by another. [4] The chambers judge’s alternative conclusion that the father’s decision to transfer the property to the son was not as a result of any undue influence was also upheld.[5]


The facts in this case will be familiar to anyone practising estate litigation or elder law, where the presumptions of resulting trust and undue influence are at play in most cases. Lorintt demonstrates the importance of timing, which determined both the resulting trust and the undue influence holdings, and the weight apportioned to the evidence of solicitors.

With respect to resulting trust claims, or indeed, any number of claims brought after death, statements made by a deceased during his or her lifetime are often relied upon years later as evidence of the deceased’s intentions. The Court of Appeal’s reasons in Lorintt are a welcome reminder that the evidentiary weight apportioned to such statements diminishes with each day that separates the statement from the transaction in question. Even if the father’s capacity had not been at issue at the time the statements were made, the court would have likely preferred that evidence of the solicitor who implemented the transfer due to proximity of that evidence to the transaction in question.

With respect to undue influence, we are reminded it takes more than the mere existence of a familial relationship, or the advanced age and ill health of the donor, to establish undue influence. Again, timing is important: the father was living independently at the time of the transfer and did not appear to be dependent on the son for financial assistance or care needs. All of the compelling evidence regarding the father’s frailty, vulnerability and capacity arose in the years that followed the transfer, and was therefore not useful in establishing undue influence.

Finally, the value of the evidence of solicitors in resulting trust and undue influence cases cannot be underestimated. Indeed, cases have been won on undue influence where, as in Lorintt, the solicitor was contacted by the adult child donee, met with the elderly donor and donee at the same time, and eschewed the services of a translator.[6] But in the absence of contradictory direct evidence from the father, who was deceased at the time of the hearing, the evidence of the solicitor regarding the father’s intentions and free will was sufficient to rebut both the presumption of resulting trust and the presumption of undue influence.

For obvious reasons, then, it is incumbent on solicitors and litigators to be familiar with the red flags of undue influence, and for solicitors to take steps to confirm that their instructing client understands the transaction when there are indicators of undue influence present.

About the Author

Heather Hogan, Secretary of the Elder Law Section, is an associate with Whaley Estate Litigation.

End Notes

[1] Lorintt v. Boda, 2014 BCCA 354 (CanLII), leave to appeal to SCC refused in Michael Peter Lorintt, named executor of the will of Ferenc Mihaly Boda, also known as Frank Boda, also known as Frank Mihaly Boda v. Lajos Ferenc Boda, 2015 CanLII 10577 (SCC)

[2] Lorintt v. Boda, 2014 BCCA 354, paras. 60 and 62.

[3] Paras. 77 - 84

[4] Para. 92.

[5] Ibid.

[6] Juzumas v. Baron, 2012 ONSC 7220 (CanLII)

[0] Comments

CBA members may sign in to comment.