Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether the property at 1327 Manitoba Avenue formed part of Alvin Flett’s estate or passed to Evelyn Graham by right of survivorship.

• Challenge to the validity of clause 3(i) of Alvin’s Will as a testamentary disposition in light of the joint tenancy.

• Application of the presumption of resulting trust under Pecore v. Pecore to determine Alvin’s intention at the time of the property transfer.

• Evaluation of whether Evelyn provided sufficient evidence to rebut the presumption of resulting trust and establish the transfer as a gift.

• Consideration of the effect of land title registration and indefeasibility in the context of resulting trust claims.

• Determination of the validity of the caveat filed by Kenneth Flett and entitlement to costs related to its filing.

Facts of the case

Evelyn Josephine Annette Graham, as executrix of the estate of Alvin Wesley Flett, brought an application for advice and directions regarding Alvin’s Last Will and Testament. The main dispute was between Evelyn and her brother, Kenneth Wesley Oscar Flett, the executor and sole trustee named in the Will. The property at issue was 1327 Manitoba Avenue, Winnipeg, which Evelyn claimed she owned by right of survivorship as a joint tenant with Alvin. Alvin passed away on June 17, 2022. The property was sold to a third party on October 4, 2024, with the transfer of title completed on or about October 15, 2025, for $80,000. The net proceeds of sale, after payment of accounts and real estate commissions, amounted to $75,120.82 and were held in trust pending resolution of the matter.

Arguments and evidence presented

Evelyn argued that, as the surviving joint tenant, she became the sole owner of the property upon Alvin’s death, and therefore clause 3(i) of the Will was not a valid testamentary disposition. She relied on the registered title and her request for survivorship filed on September 29, 2022. Evelyn asserted that Kenneth had no ownership right in the property and that he improperly took control of it after Alvin’s passing.

Kenneth acknowledged the joint tenancy but disagreed with Evelyn’s position regarding Alvin’s intentions. He attested that Alvin was pressured into adding Evelyn to the title following heart surgery in 2016 and later sought to have her removed. Kenneth provided a handwritten note dated April 7, 2020, in which Evelyn wrote, “Take my name of (sic) the land of my father’s house,” and a Notice of Intention to Sever Joint Tenancy prepared and executed by Alvin on March 29, 2021. Kenneth stated that Alvin’s Will, executed June 10, 2020, deliberately included clause 3(i) to address the property and exclude Evelyn. Kenneth also attested that he moved in with Alvin in 2018 to provide care and that Evelyn did not reside at or contribute to the property. After Alvin’s death, Evelyn changed the locks and her daughter became a rent-paying tenant.

Discussion of policy terms and legal principles

The court reviewed the principles for interpreting testamentary documents, emphasizing the need to ascertain the testator’s intention. Clause 3(i) of the Will directed that the property be paid or transferred to Kenneth, or, if he predeceased Alvin or died within 15 days of Alvin’s death, to Cory James Louise Meneghin and Cody Joseph Meneghin.

The court applied the presumption of resulting trust as set out in Pecore v. Pecore, holding that when a parent gratuitously transfers property to an adult child, it is presumed to be held in trust for the parent unless there is clear and convincing evidence of an intention to gift. The burden was on Evelyn to prove that Alvin intended the transfer as a gift. The court found that Evelyn provided little evidence regarding the circumstances of the transfer or Alvin’s intentions, while Kenneth’s evidence regarding Alvin’s intention to sever the joint tenancy was unchallenged.

Evelyn’s argument that the land title registration and the doctrine of indefeasibility gave her absolute ownership was rejected. The court held that equitable interests, such as resulting trusts, can override registered title in Manitoba.

Outcome and ruling

The court dismissed Evelyn’s application, finding that clause 3(i) of the Will was a valid testamentary disposition. The property was subject to a resulting trust in favor of Alvin or his estate, and Evelyn failed to rebut the presumption that the transfer was intended as a gift. The estate was entitled to the net sale proceeds of $75,120.82, to be distributed in accordance with the Will. The caveat filed by Kenneth was found to be valid. The court declined to grant Kenneth’s additional requests for relief, such as compensation for diminution in property value, legal fees, or rental income, due to insufficient evidence and procedural grounds. The successful party was Kenneth, as executor of the estate, and the estate was awarded the net proceeds of the property, subject to any further necessary adjustments for administration. If the parties could not agree on costs, they were permitted to return to court for further directions. If the exact amount of costs or monetary award could not be determined, the court indicated this would be addressed in further proceedings if needed.