It is not uncommon that a person will add someone else, often times a family member, to their bank accounts as a joint owner or create a new bank account with that person as a joint owner in order to avoid probate fees. This may also be done with other assets as well, such as properties. However, disputes may arise as to whether, on the death of the one account owner, those joint bank accounts form part of their estate, or whether the surviving joint account owner is entitled to those accounts through the right of survivorship. The surviving joint account owner may claim that the funds in those joint accounts were gifted to them, and that they are not to form part of the estate.

It is in this scenario, among others, in which the ever-known principle of the presumption of a resulting trust arises. In order for the surviving joint account owner to prove that they are entitled to the accounts, they must rebut the presumption that the accounts are to be held on a resulting trust for the estate and therefore properly form part of the estate. The very recently reported case of Atkins v. Chamberlain, 2025 ONSC 866 provides a helpful summary on the legal principles and factors that the court will take into account in their analysis, specifically with regards to joint bank accounts:

• Equity assumes bargains, and not gifts;
• Section 13 of the Evidence Act, R.S.O. 1990, c. E.23, requires the transferee to corroborate his evidence by some other material evidence and bars him from a finding in his favour based on his evidence alone;
• The transferee must positively prove that the transferor created the joint bank accounts with a donative intention;
• The standard of proof on a balance of probabilities requires clear, convincing and cogent evidence;
• Absent clear documentation, statements to third parties, or conduct from the transferor, the presumption of a resulting trust will not be defeated;
• The rights of survivorship, both legal and equitable, vest when the joint account is opened, and the gift of those rights is inter vivos in nature;
• The court must weigh the evidence relating to the actual intention of the transferor in order to determine whether the presumption has been rebutted;
• Evidence of the transferor’s intentions that arise subsequent to the transfer should not be automatically excluded, but the court must assess the reliability of this evidence and determine what weight it should be given, guarding against evidence that is self-serving or that tends to reflect a change in intention. And such evidence must be relevant to the intention of the transferor at the time of the transfer;
• The bank documents that set up a joint account are an agreement between the account holders and the bank as to legal title. They are not evidence of an agreement between account holders as to beneficial title;
• Evidence of use and control of the funds in the joint accounts may be of marginal assistance only and, without more, will not be determinative;
• The granting of a power of attorney to the transferee will not be determinative, and courts should use caution when relying upon it;
• The finding of a gift fully rebuts the presumption of unjust enrichment. The gift is the juristic reason for the enrichment;
• The nature of a joint account is such that the balance will fluctuate over time. The gift in these circumstances is the transferee’s survivorship interest in the account balance at the time of the transferor’s death, not to any particular amount; and
• A gift is a voluntary transfer of property to another without consideration, with the essential elements being: (i) capacity of the transferor to make a gift; (ii) intention of the transferor to make a gift; (iii) completed delivery of the subject matter of the gift to or for the transferee; and (iv) acceptance of the gift by the transferee.

In Atkins, the court ultimately concluded that the respondent, who was the recipient of the joint bank accounts through the right of survivorship, had not discharged his onus on a balance of probabilities to rebut the presumption that the proceeds of the joint bank accounts were the subject of a resulting trust and were instead a gift.

The main reason for this finding was that the respondent had not provided sufficient corroborating evidence. There was no evidence, apart from the respondent’s own evidence, that the testator’s intention with the creation of the joint bank accounts was to create a gift for the respondent. The evidentiary record was so bare that Justice Horvat stated, “It is not even clear to me that Christine (testator) was aware of the creation of the Joint Accounts, the deposit into the Joint Accounts in May 2020 or the withdrawals and deposits into investments in July 2022, let alone that she approved them or intended them to be gifts to Bruce (respondent).” The totality of the evidence did not persuade the court that the testator created the joint bank accounts with the requisite intention that they be gifted to the respondent.