The New Brunswick Court of Appeal has upheld a $252,000 damages award to a woman whose late common-law partner’s children removed cash from a household safe, finding that the evidence supported his intention to give her the money during his lifetime.
In Hoar and Teakles v. Kennedy, 2026 NBCA 48, the court explained why it dismissed the appeal by two of Wayne Hoar’s adult children from the judgment in favour of Cindy Kennedy. The appeal was dismissed on January 28, 2026; the reasons were released on May 7, 2026.
The ruling turns on proof of a gift and beneficial ownership, not an automatic entitlement to inherit as a common-law partner. Moving the money from a joint account to a safe did not undo the interest the trial judge found Kennedy had in it.
Cash counted before the death
Kennedy and Wayne Hoar had lived together for about 20 years before his death in April 2023. They maintained a joint bank account used for household expenses. He withdrew money when interest rates were low and stored cash in a safe in their home.
Kennedy’s evidence was that Hoar intended the cash to help her continue living in the home if he died. Other witnesses corroborated his intention to provide for her. Although she knew the safe’s combination and had access to it, she could not operate the lock.
On January 20, 2023, Hoar, Teakles and her husband counted the cash in Kennedy’s presence. It totalled $252,000, an amount recorded in a book kept in the safe.
Two days after Hoar’s death, family members removed the cash without Kennedy’s consent. Teakles provided the combination. Kennedy sued for conversion, the civil wrong at issue when someone improperly interferes with another person’s possessory rights in property.
At trial, Teakles testified that the cash totalled $179,000. The judge rejected that account because there was no explanation for the reduction from the January count and no evidence that money had been spent in the intervening period. The book recording the count had disappeared.
The judge also drew an adverse inference from the appellants’ omission of the cash from the estate inventory when they sought authority to administer their father’s estate. That supported the conclusion that they had not treated the money as an estate asset.
The Court of King’s Bench awarded Kennedy $252,000, pre- and post-judgment interest and $18,000 in trial costs. The children challenged the findings about ownership, the validity of the gift, hearsay evidence and Kennedy’s entitlement to the entire amount.
Intention displaced the starting presumption
Justice Quigg, writing for a unanimous panel, explained that a transfer made without payment generally attracts a presumption of resulting trust: the starting assumption is that the person who supplied the property intended to retain its beneficial ownership. The recipient must establish that a gift was intended.
The presumption is a starting point, not an inflexible outcome. Evidence of the transferor’s actual intention can overcome it on a balance of probabilities. The court said the presumption of advancement, which starts from an assumption of a gift in certain relationships, generally does not apply to common-law spouses.
The appellants argued that the trial judge had failed to apply the proper trust analysis expressly. The appeal court found that the accepted evidence nevertheless established a clear intention to benefit Kennedy rather than leave the funds in the estate. Explicitly applying the resulting-trust presumption would therefore have produced the same result.
That conclusion rested on the evidence as a whole: the long, supportive relationship, Hoar’s statements about providing for Kennedy, the segregation of the money and the counting of the cash in her presence. The court was not relying on any single circumstance, such as who could physically open the safe.
A gift did not require a hand-to-hand transfer
The appeal court held that changing the money’s location from the joint account to the safe did not change its beneficial ownership on these facts. Kennedy had legal access to the account, and the trial judge accepted that Hoar’s intention to benefit her continued after the withdrawals.
The court also rejected the argument that the money had not been delivered as a valid gift. Conduct demonstrating an intention to transfer a present beneficial interest can amount to constructive delivery, even without physically handing the money to its recipient.
Here, repeatedly placing joint-account funds in the safe, separating them for Kennedy’s benefit and making the statements accepted by the trial judge supported a lifetime transfer. It was therefore unnecessary to decide whether the money qualified as a gift made in contemplation of death.
Evidence and amount survived review
The panel rejected the challenge to the treatment of hearsay. The trial court had considered the necessity and reliability of the lawyer’s evidence about Hoar’s intentions and assessed the weight it deserved. Some documentary evidence was treated as less reliable, while other witnesses corroborated Kennedy’s account.
The appeal court found that the judge had addressed admissibility rather than simply accepting the deceased’s statements without analysis. It also upheld the finding that Hoar intended Kennedy to receive the whole beneficial interest in the cash, not merely a share.
Much of the appeal invited the panel to reweigh evidence. Factual findings and inferences supported by the record attract deference; the appellants had not established the clear, outcome-changing error needed to overturn them.
The $252,000 award, interest and trial costs therefore remained intact. The appeal court ordered an additional $8,000 in costs covering both the appeal and the stay motion.
The decision illustrates how evidence of an intended lifetime gift can determine a dispute over property after death. It does not mean that sharing a home or a joint account automatically gives a surviving partner every asset kept there.
