September 6, 2010

A right to restitution upon a future event may accrue immediately upon evasion


An entitlement to restitution that would normally be delayed to a later point may accrue immediately where the party liable takes steps to evade the entitlement. This is illustrated in Antrobus v. Antrobus, 2010 BCCA 356, where, before a confrontation with the appellant-parents, the respondent-daughter acted in her youth to carry out the majority of household chores, cared for her two younger siblings, and worked, without pay, for their business. As compensation, the appellants promised to leave her their entire estate. After the confrontation, the appellants transferred their present and future real estate interests to themselves and to their two other children as joint tenants under a trust arrangement.

The trial judge concluded unjust enrichment, used the value received and value survived methods to award damages of about ¼ of the appellants’ net estate ($190,000), and set aside the trust agreement as a fraudulent conveyance. The appellate court allowed the appeal in part. The parents were indeed unjustly enriched, as any juristic reason for retaining the enrichment ended when they executed the trust agreement to defeat her entitlement. The trial judge erred, however, in awarding restitution based on the value of the parents’ existing assets, as too many variables existed to tie the value of the benefit received by the parents to the value of their assets. The court reassessed compensation at $100,000.

Antrobus v. Antrobus, 2010 BCCA 356