In the estate litigation world joint bank account disputes have unfortunately become a routine occurrence.
It is important that estate practitioners keep in mind that there are 4 types of ownership arrangements our courts have recognized for joint bank accounts where a parent adds an adult child as a joint owner. These arrangements are as follows:
(a) Resulting Trust: The funds in the accounts result back to the estate as a consequence of the death of the parent by way of a resulting trust
(b) Gift of Survivorship: The funds were placed into a joint account by the transferor parent with the transferee adult child with the intention that the adult parent retain exclusive control of the account until her death and thereby gift the right of survivorship to the adult child.
(c) Gift: An outright gift was made to the adult child when the joint account was created
(d) Trust: An express trust was created when the adult parent created a joint account.1
In Swiderski v Walsh2 the court ruled on an application where the applicant sought a declaration that the proceeds in certain bank accounts were subject to a resulting trust in favour of the estate of the deceased mother. The deceased had left a will where she named her daughter as executrix and left the residue of the estate to her issue in equal share per stirpes.
Lo and behold a dispute arose between brother and sister over the status of a joint bank account the mother held with her daughter. The brother alleged that the mother intended to treat her 2 children equally and that the funds from the account should result back to the estate. The daughter took the position that the funds passed to her by right of survivorship.
The Court provided an overview of the law of joint bank accounts when Justice Rady stated:
The decision in Pecore v. Pecore, is one of the leading cases in the area of disputes over gratuitous transfers. The Court confirmed that the common law presumptions of advancement and resulting trust continue to play a role in such disputes. However, the Court held that the presumption of advancement does not apply in respect of independent adult children. A rebuttable presumption of resulting trust arises in such cases. The burden of proof for rebuttal is on a balance of probabilities.3
The Court ultimately took the view that the presumption of resulting trust had been rebutted and that the mother had intended that her daughter have the funds in the account by right of survivorship. The court hung its hat on the fact that the deceased held the joint bank account with the daughter for almost 25 years and the deceased did not make any changes to the arrangement of the ownership in that time period.
The Court was also of the view that the deceased was aware that her children were estranged during the last ten years of her life. Nevertheless, the deceased made no changes to the manner in which she ordered her affairs. There is no evidence that she was unable to do so because of incapacity or ill health.
What makes this joint bank account case novel is the evidentiary analysis the court undertakes when considering the affidavit of the applicant. The Court’s pointers may be of assistance to estate litigators when preparing affidavits in contested estate matters.
Justice Rady in scrutinizing the affidavits of the parties cited the Ontario Court of Appeal decision in Rondel v Robinson Estate4 and noted:
As a general rule, indirect evidence of surrounding circumstances that sheds light on a testator’s intention is admissible. However, direct extrinsic evidence is not admissible where a will is unambiguous.5
In debating whether to strike the affidavit of the applicant because it contained paragraphs that purported to speak about the deceased’s intention the court held:
Nevertheless, I am not persuaded that the affidavits should be struck. Some of the paragraphs may be seen as corroborative of some of [the applicant’s] evidence.6
The Court also provided a helpful summary from Pecore v Pecore7 of the type of evidence a court may consider when trying to ascertain the intention of the parent transferor to determine if the presumption of resulting trust had been rebutted on the joint account. The type of evidence that can be considered is:
- the wording used in bank documents;
- the control and use of funds in the account;
- the granting of a power of attorney;
- the tax treatment of the account; and
- evidence subsequent to the transfer to the extent it is relevant to the transferor’s intention.
The decision in Swiderski is a helpful reminder of the facts a court may consider when determining if the presumption of resulting trust is rebutted for a joint bank account.
1. Johnson v. The Estate of Verna Hazel Johnson, 2015 ONSC 3765 at para. 25.
2. Swiderski v Walsh, 2015 ONSC 3443.
3. Ibid at para. 24.
4. Rondel v. Robinson Estate, 2011 ONCA 493, 106 O.R. (3d) 321.
5. Swiderski v Walsh, 2015 ONSC 3443 at para. 9.
6. Ibid at para. 14.
7. Pecore v. Pecore, 2007 SCC 17,  1 S.C.R. 795
8. Swiderski v Walsh, 2015 ONSC 3443 at para. 25.