Mawdsley v. Meshen

Mawdsley v. Meshen

The FCA applies only where there is proof (direct or inferable) that the transferor intended to delay, hinder or defraud creditors or others; while intent may be inferred from the effect of a transfer and badges of fraud and a presumption may arise for voluntary transfers, the effect alone is not conclusive as a...

Source-derived case information.

Citation
2012 BCCA 91
Parties
Appellant (plaintiff): Dennis Mawdsley; Respondent (defendant): Michael Meshen; Respondent (defendant): Damon Meshen; Respondent (defendant): Shirley Meshen; Respondent (defendant): William Meshen; Respondent (defendant): Western Garden & Lawn Supplies Ltd.; Respondent (defendant): Meadowland Peat Ltd.; Respondent (defendant): Big Bend Manufacturing Ltd.; Respondent (defendant): The Joan Meshen Trust; Third Party: Kevin Moore as Executor of the Will and Trustee of the Estate of Joan Meshen, Deceased
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
28 February 2012
Procedural Posture
Appeal From Supreme Court of British Columbia / Court of Appeal Judgment on Appeal From Trial Judgment Dated August 5, 2010 & July 11, 2011
Outcome
Appeal dismissed; trial judgment affirmed
Legal Topics
Alter Ego Trust, Fraudulent Conveyance Act S.1 Intent, Wills Variation Act Standing, Badges of Fraud, Presumption From Voluntary Transfer, Standard of Review for Findings of Fact
Source Language
english
Trusts Estate Law Probate and Estate Administration Fraudulent Conveyance Law Family Law Equitable Remedies Alter Ego Trust Fraudulent Conveyance Act S.1 Intent +4 more

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Parties

Dennis Mawdsley

Appellant (plaintiff)

Michael Meshen

Respondent (defendant)

Damon Meshen

Respondent (defendant)

Shirley Meshen

Respondent (defendant)

William Meshen

Respondent (defendant)

Western Garden & Lawn Supplies Ltd.

Respondent (defendant)

Meadowland Peat Ltd.

Respondent (defendant)

Big Bend Manufacturing Ltd.

Respondent (defendant)

The Joan Meshen Trust

Respondent (defendant)

Kevin Moore as Executor of the Will and Trustee of the Estate of Joan Meshen, Deceased

Third Party

Procedural Posture

Appeal From Supreme Court of British Columbia / Court of Appeal Judgment on Appeal From Trial Judgment Dated August 5, 2010 & July 11, 2011

Legal Issues

  1. 1 Whether proof of a transferor's intention to delay, hinder or defraud creditors is required under the Fraudulent Conveyance Act
  2. 2 Whether the mere effect of an inter vivos transfer that removes assets from an estate conclusively establishes fraudulent intent as a matter of law
  3. 3 Whether a claimant whose Wills Variation Act entitlement arises only on the settlor's death qualifies as a "creditor or other" under the Fraudulent Conveyance Act

Ratio Decidendi

The FCA applies only where there is proof (direct or inferable) that the transferor intended to delay, hinder or defraud creditors or others; while intent may be inferred from the effect of a transfer and badges of fraud and a presumption may arise for voluntary transfers, the effect alone is not conclusive as a matter of law; moreover a person whose claim under the Wills Variation Act arises only on the settlor's death does not, absent a prior legal or equitable claim during the settlor's lifetime, qualify as a 'creditor or other' under the FCA; the Court will defer to the trial judge's factual finding of no intent absent palpable and overriding error.

Court Disposition

Appeal dismissed; trial judgment affirmed

Orders

  • Appeal dismissed
  • Judgment of the Supreme Court of British Columbia affirmed