Resulting Trust Reverberations

May 25, 2007 Hull & Hull LLP Joint Accounts Tags: , , , , , 0 Comments

Both of the recent Supreme Court of Canada joint account/resulting trust decisions of Pecore v. Pecore, [2007] SCC 17 and Madsen Estate v. Saylor, [2007] SCC 18 involved joint accounts between deceased and child.

It is worth considering whether the decisions will impact cases involving joint accounts between deceased and non-children. (And please note I’m not addressing the impact on situations involving children, which is considerable and needs much more analysis than a blog).

The SCC’s strong statements confirming the presumption of resulting trust do not necessarily change the law as it pertains to non-children situations. However, the rarified source of the decisions could help Estate Trustees asserting resulting trusts over joint accounts with non-children. Consider:

The presumption of resulting trust therefore alters the general practice that a plaintiff (who would be the party challenging the transfer in these cases) bears the legal burden in a civil case. Rather, the onus is on the transferee to rebut the presumption of resulting trust. (Pecore, para 25)

Of course, the presumption of resulting trust means that it will fall to the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to whatever assets are left in the account to the survivor. Otherwise, the assets will be treated as part of the transferor’s estate to be distributed according to the transferor’s will. (Pecore, para 54)

Not really different from pre-existing caselaw, but the SCC rarely enters the realm of Estates and Trusts law. When it does, lawyers pay rapt and lasting attention. Even confirmation of pre-existing common law can have quite an effect.

No doubt every Estate Trustees claiming resulting trusts over joint accounts by a deceased with non-children will be referring to these cases.

Thanks for reading.

Sean Graham

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