This blog has been written by Lily MacLeod [Associate] at Fasken LLP

It is common for an elderly parent to set up a joint bank account with their adult child. This enables the child to help manage the parent’s finances freely and efficiently (either as the parent’s attorney for property or more informally). Some families may assume that title to the account funds will pass to the adult child by right of survivorship upon the parent’s death (instead of forming part of the parent’s estate), thus avoiding the need to pay estate administration tax on those funds. However, typically the presumption of resulting trust will apply in such circumstances meaning that there is a rebuttable presumption that the adult child is holding the funds in trust for the parent and has an obligation to return them.

If the adult child is not the only beneficiary of the parent’s estate (i.e. the parent has other children), disputes can arise as to whether the funds form part of the parent’s estate and should be distributed to the beneficiaries accordingly.

Recent Ontario case law confirms that an adult child seeking to rebut the presumption of resulting trust must present sufficient evidence of the parent’s intent — i.e. evidence that the parent truly turned their mind to gifting the funds at the time the account was created.

Justice Gibson recently addressed the legal principles that apply in such a scenario in Renwick Estate and Miller v. Stanberry. In that case, the applicant, a daughter of the deceased (and one of the two estate trustees), asked the court to determine that certain joint bank accounts belonged to the Estate, rather than to the applicant’s half-sister (the other estate trustee). The half-sister argued that the accounts belonged to her by right of survivorship.

Justice Gibson found that the accounts were assets of the Estate:

• “It is well-established that there is a presumption of a resulting trust that arises when adult children hold joint accounts with their elderly parents. The presumption is that, upon the parent’s demise, the money does not pass by right of survivorship to the child; rather, it is held in a resulting trust for the estate.”

• “The presumption of resulting trust may be rebutted, but the onus is on the party seeking to displace the presumption to present evidence sufficient to establish on the balance of probabilities that the parent intended for the child to receive a beneficial interest in the account. Evidence proffered to rebut the presumption of resulting trust should ideally be contemporaneous or close to contemporaneous with the time the account was made joint…”
• The court confirmed that the following evidence was relevant to its analysis: the deceased’s will (including whether it addressed the accounts at issue), discussions between the deceased and the bank when the account was opened (there was no such evidence in this case) and the adult child’s knowledge of where the funds would go (in this case, the half-sister did not realize the funds were to go to her until she reviewed the banking documents). 

• “[T]he key conclusion to be drawn from [the relevant] cases is that a party seeking to rebut the presumption of resulting trust cannot rely on checking off a box, or other language in banking documents explaining survivorship. There must be more evidence than this, to establish that the individual creating the joint account truly turned their mind to gifting a beneficial interest in the account. Bank documents can speak to legal title, but they are not necessarily dispositive regarding equitable title of the accounts. In the present case, this type of further evidence just is not sufficiently present. Pamela can point to banking documents, but there is no direct evidence of what was actually discussed when the Disputed Accounts were set up.”

Ultimately, the determination of intention is a highly fact driven analysis. In Stumpacher v Dyer, on a different set of facts and where there was direct evidence led of the deceased’s specific intention for his estate planning (i.e. evidence that he wanted his entire estate to pass to his daughter with one exception), the court concluded that the deceased’s daughter had rebutted the presumption of resulting trust.