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Resulting Trusts – Don’t Overlook Them

During my talk at Hull & Hull’s recent breakfast held at the Ontario Bar Association offices, I touched on the Pecore v. Pecore, 2007 SCC 17 (“Pecore”) and Madsen Estate v. Saylor, 2007 SCC 18 (“Madsen”) Supreme Court of Canada decisions which essentially did away with the presumption of advancement except as it pertains to minor children. In effect, a child of a deceased who holds assets jointly with the deceased can no longer rely on the presumption that the deceased wanted the child to take the asset at death.

Given that new law, executors not wanting to challenge rights of survivorship by asserting a resulting trust against the surviving account holder should obtain clear and comprehensive releases and indemnities from all beneficiaries. If possible, the beneficiaries should get independent legal advice. Where independent legal advice is feasible the beneficiaries should be encouraged to get it. In any case foregoing a resulting trust claim to joint assets has risks.

The circumstances or even the identities of gift-over beneficiaries can change so much over time that a release or indemnity may not be enforced by the court. New beneficiaries can be born who may be less generously inclined as their predecessors. Family relations can turn to the worst, changing the approach to joint assets.

All in all, a difficult recipe for Executors to be sure.

Thanks for reading.

Sean Graham