All About Estates

Allsorts of Potential Problems with Joint Bank Accounts

This blog was written by Ronald Neal, student-at-law at de VRIES LITIGATION LLP.

What happens to the money in a joint bank account when one of the joint account owners passes away? Do the funds pass to the surviving joint owner outside of the estate, or do the funds form part of the deceased joint owner’s estate? The Ontario Superior Court of Justice considered these questions in its recent decision in Brathwaite v. Harding, 2018 ONSC 2488.

Background

Virena Licorish (the “Deceased”) passed away on February 14, 2017.

In her last will and testament dated February 20, 2012 (the “Will”), the Deceased named her nephew, David Brathwaite (“Mr. Brathwaite”), and her cousin, Chester Harding (“Mr. Harding”), as her executor and alternative executor, respectively.

The Will was relatively uncomplicated, and provided for the payment of debts and six modest bequests totalling $20,000. The residue of the estate (the “Estate”) was to be divided equally between Mr. Brathwaite and Mr. Harding.

In August of 2016, the Deceased added Mr. Harding as a joint owner of a bank account the Deceased had with the Royal Bank of Canada (“RBC”). The Deceased’s reasons for doing so were practical as Mr. Harding was providing care and assistance to the Deceased in her twilight years. Mr. Harding also paid all of the Deceased’s bills, though did not contribute to the joint account in any monetary way himself. To add Mr. Harding to the joint account, both the Deceased and Mr. Harding were required to execute authorizations acknowledging that upon the death of any joint owner of the account that the right of survivorship would apply (i.e. that the funds in the account would be paid to the surviving joint owner).

Late in October 2016, the Deceased sold her house and deposited the proceeds of the sale into the joint account. From these proceeds, and before her death, the Deceased transferred $250,000 to Mr. Brathwaite and/or Mr. Brathwaite’s son.

Following the Deceased’s death, Mr. Harding withdrew $250,000 from the account, claiming that he was entitled to the money based on the specific wishes of the deceased and the provisions of the joint account. Mr. Brathwaite challenged Mr. Harding’s claim and argued that the $250,000 belonged to the Estate.

Issue

The question in this case is whether the Deceased intended to make a gift of $250,000 from the joint account to Mr. Harding. If the money was indeed intended as a gift, then that money would pass to Mr. Harding outside of the Estate, leaving Mr. Brathwaite with less than he no doubt aspired to recover. If it cannot be established that the money was a gift, however, then the general rule that applies to gratuitous transfers is engaged and there becomes a legal, albeit rebuttable, presumption of a resulting trust (i.e. that the Deceased intended that Mr. Harding hold the money in trust for the benefit of the Estate to be distributed according to the Will).

Judgment

As the transferee of a gratuitous transfer, the onus was on Mr. Harding to demonstrate that the transfer of the $250,000 to him based on the right of survivorship was intended to be a gift.

Mr. Harding maintained throughout the proceeding that when the joint account was opened the Deceased promised him the $250,000 from the account upon her death. In marshaling his case, however, Mr. Harding was obligated to adhere to section 13 of the Evidence Act, R.S.O. 1990 c. E. 23, which provides that:

In an action by or against the heirs, next of kin, executors, administrators or assigns of a deceased person, an opposite or interested party shall not obtain a verdict, judgement or decision on his or her own evidence in respect of any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence. [Emphasis added.]

With that in mind, Mr. Harding filed with the Court relevant documentation concerning the joint account provided by RBC (e.g. the aforementioned authorizations), including the evidence of an RBC employee that met with Mr. Harding and the Deceased when the joint account was opened. Moreover, certain statements made by the Deceased while alive were deemed admissible and relied upon by both parties.

All told, the Court found the evidence provided by Mr. Harding to be not only sufficient corroboration to Mr. Harding’s own testimony, but also sufficiently persuasive to rebut the presumption of a resulting trust. The Court was satisfied that the evidence before it supported Mr. Harding’s contention that the money was a gift and would therefore pass to him outside of the Estate. Moreover, the Court found that such a gift to Mr. Harding would be consistent with other decisions made by the Deceased, such as giving Mr. Brathwaite and/or Mr. Brathwaite’s son $250,000 and generally dealing with the two parties in an equal fashion.

Conclusion

It is common nowadays for Canadians to transfer their assets into joint accounts with their family members. Such an arrangement can be quite useful, but it can also come with unintended consequences. One needs to be careful with the financial arrangements they make, and be mindful of the consequences and benefits of same.

About Diane Vieira
Diane has practiced in the area of estate, trust and capacity litigation since she was called to the Ontario Bar in 2006. Diane obtained her law degree from Queen’s University after completing an Honours Bachelor of Arts degree from the University of Toronto. She also recently received the Certificate in Elder Law from Osgoode Hall Law School. She is a member of the Trusts & Estates Section of the Ontario Bar Association, the Advocates’ Society, and the Toronto Lawyers Association. Diane has chaired various continuing legal education programs regarding estate, trust and capacity matters. She can be reached at dvieira@devrieslitigation.com

1 Comment

  1. Jen Moore

    May 23, 2018 - 1:29 pm
    Reply

    Diane, I am interested to know if you feel that rather than naming a third party, who is not a spouse, or a sole beneficiary of an estate, as a joint owner of a bank account or other investment account, it is a better practice to add the person who has Power Of Attorney to the account to deal with day to day financial transactions while that person is alive. I understand that it doesn’t protect that account from probate inclusion, but is perhaps more transparent and representative of the POA role and eliminates the risk of a potential heir contesting the estate settlement.

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