What is the test for the presumption of resulting trust?
British Columbia, Canada
The following excerpt is from Kerr v. Baranow, 2009 BCCA 111 (CanLII):
Turning to the presumption of resulting trust, the trial judge, referred to Pecore v. Pecore, 2007 SCC 17, 1 S.C.R. 795, and reviewed the circumstances in which a rebuttable presumption of resulting trust may arise. He noted that, upon a gratuitous transfer of property, the onus is on the transferee to demonstrate that a gift, as opposed to a resulting trust, was intended.
At para. 60, the trial judge commented on the difference between a resulting and constructive trust, referring to Dickson J.’s comments in Rathwell v. Rathwell, 1978 CanLII 3 (SCC), [1978] 2 S.C.R. 436 at 453-454.
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