Vancouver joint account estate disputes are becoming ever more common. Our Vancouver estate dispute lawyers see these joint tenancy or joint bank account cases frequently. Vancouver Joint Account Estate Disputes can be confusing to our clients who wonder what a resulting trust is or what a presumption of advancement is.
Million-dollar accounts and real property are often at stake. A recent case where an elderly person signed joint account documents to facilitate a great-niece helping her with her banking shortly before her death provides a warning to families with elderly, wealthy parents.
MacLean Estate Litigation has 6 offices in Vancouver, Surrey, Kelowna, Fort St John, Calgary and Richmond. Call any of our BC and in Calgary offices immediately to help you obtain justice in a joint account estate disputes.
The Simple Rule To Apply
A simple way to think of these disputes cases that involve one person putting up all the money for a jointly owned property is to remember “there is no free lunch unless someone clearly made a gift to the noncontributing party.”
What happens when an elderly relative who exhibits some signs of mental confusion dies after adding her great-niece to a joint bank account worth a quarter of a million dollars? In a recent BC Supreme Court case of Hardy Estate a number of charities named in the deceased’s Will were part of an estate claim made against the great-niece arguing the $250,000 in the joint account on death were never gifted to her and still remained part of the deceased’s estate.
Vancouver Joint Account Estate Disputes Call 1 877 602 9900
In the end result, the Trial Judge found the great-niece had not met the burden of proving the deceased made the gift of $250,000 to her when she opened a joint account in both names with the right of survivorship because:
- The banking documents on the purpose of the joint account were not overly clear,
- there was little evidence of discussion at the bank of what would happen to monies in the account on Ms. Hardy’s death,
- Ms. Hardy’s Will gave everything to charity,
- there was no post-signing conduct by the great-niece showing appreciation or actions consistent with receiving a $250,000 gift, and
- Ms. Hardy was 84 at the time, she may have had some cognitive decline and she had a limited formal education.
As such the whole of the monies in the account including withdrawals made by the great-niece after death were ordered returned top the estate to be governed by the terms of the deceased’s Will.
Vancouver Joint Account Estate Disputes Call 1 877 602 9900
Let’s look at the law on what happens when a joint account is opened or real estate is registered in joint names when a dispute over these assets arises:
- Critically, the deceased’s intention regarding the creation of the joint interest is key in deciding these cases and it will be determined on all of the evidence including in part by witnesses to the creation of the joint account and also by reviewing documents signed at the time of the joint account or joint tenancy in the land.
- As noted in Canada’s leading case of Pecore, the presumption of advancement has historically arisen only in cases involving transfers between spouses and between parent and child. Normally, equity presumes bargains rather than gifts. The normal rule is equity presumes a bargain (there is no free lunch!)
- When these transactions occur it is wise to have a lawyer involved to ensure confusion and big costs down the road are avoided. A number of documents can be signed to avoid problems down the road.
- Here is a great summary from the Hardy Estate decision just handed down:
[10] The law on this point was neatly summarized by Madam Justice Dickson in Creyke v. Creyke, 2016 BCCA 499:
[49] A trust may be created in one of two ways: by an intention to settle property by way of a trust or by imposition of law to secure a just result. In Suen v. Suen, 2013 BCCA 313, Madam Justice Smith reviewed the essential principles that apply to the creation of express, resulting and constructive trusts.
[50] An express trust is created by intention. It comes into existence when the alleged settlor clearly and specifically states that certain property is to be held in trust. At para. 45 of Suen, Madam Justice Smith explained:
[45] An express trust is created when the requirements of certainty of intention, subject, and objects of the transfer have been established and the trust property has been vested in the trustee: [Donovan W.M. Waters, Mark R. Gillen & Lionel D. Smith, Waters’ Law of Trusts in Canada, 3rd ed. (Toronto: Carswell, 2009)] at 132 and 167. …
[51] Intention is also a key element in a resulting trust analysis. A resulting trust does not, however, require proof of intention in precisely the same way. Rather, it is a legal doctrine imposed “to return property to the person who gave it and is entitled to it beneficially, from someone else who has title to it”: A.H. Oosterhoff et al., Oosterhoff on Trusts: Text, Commentary and Materials, 7th ed. (Toronto: Carswell, 2009) at 25, cited with approval in Suen, at para. 37.
[52] The presumption of resulting trust is engaged where an owner of property gratuitously transfers title to the property to another. The actual intention of the grantor is the governing consideration. However, where a gratuitous transfer is challenged the onus is on the transferee to demonstrate that a gift was intended. Unless the presumption is rebutted on a balance of probabilities, the transferee holds the property in trust for the grantor: Pecore v. Pecore, 2007 SCC 17 at paras. 24, 43-44.
[53] The actual intention of the grantor is determined on the whole of the evidence. The presumption of resulting trust is simply a legal assumption the court will make if sufficient evidence on the point is not adduced. In many cases, persuasive and reliable evidence of the grantor’s actual intention may be presented by the parties. The presumption of resulting trust will only determine the result where there is insufficient evidence to rebut it on a balance of probabilities: Pecore at paras. 22-23, 44.
[Emphasis added.]
[11] In the decision of the Supreme Court of Canada in Pecore v. Pecore, 2007 SCC 17, it was held that the presumption of advancement will overcome the presumption of resulting trust. The presumption of advancement is founded on the moral obligation that adults have to advance the interests of their dependents, and on the convention or tradition that parents tend to make gifts to their children rather than bargains. The presumption is converse to the rule that equity presumes bargains rather than gifts.
Vancouver Joint Account Estate Disputes Call 1 877 602 9900
Call Lorne MacLean, QC our founder, or any of our highly rated and experienced Vancouver joint account estate disputes lawyers if you are concerned someone is taking advantage of a loved one or to ensure their real wishes are carried out. In the event there is confusion, or injustice, involving joint account estate disputes when you have lost a loved one, call us immediately! Click here to learn more.
