The Often Problematic Issue of Cash in a Safety Deposit Box
Cash in a safety deposit box (“SDB”) often poses a problem. As there are rarely records as to what was in the SDB, disputes can arise as to how much money was there, and what happened to it.
The Newfoundland and Labrador Court of Appeal decision in Temple v. Peddle, 2019 NLCA 2 (CanLII) illustrates this problem. There, mom set up a SDB, jointly held with her son, Leo. Leo testified that mom had $50,000 in the SDB. Later, another son, Wendell, accessed the SDB with mom present, and removed cash and deposited it in another SDB. Wendell gave evidence that the amount removed was $30,000. Subsequently, Leo, as mom’s guardian, sued Wendell for the return of the difference, being $20,000.
The Court and the Court of Appeal had to grapple with competing evidence as to the amount in the SDB: Leo said that there was $50,000, and Wendell said that there was only $30,000. The court agreed with Leo, and the Court of Appeal upheld the lower court’s decision.
The matter came down to credibility. The lower court reviewed the evidence in detail, and found that Leo’s story was more credible than Wendell’s. When Leo attended to open the SDB with mom, Leo’s common-law spouse attended with them. She gave evidence that the SDB contained $50,000. When Wendell attended with mom, mom’s caregiver was apparently present when the money was counted. However, she did not give evidence.
In deciding the case, the Court of Appeal reviewed the standard of proof required in such cases. The Court of Appeal confirmed that the standard of proof in civil cases is proof on a balance of probabilities: there is no “sliding scale”, such as a requirement of proof to a high degree of probability.
We often see these types of claims. They can apply to cash in an SDB, or under a mattress. These claims are hard to prove or defend.
Clients should be cautioned that undocumented cash, wherever kept, is hard to account for. Disputes can easily arise, where one party claims it is more than what is claimed by another party.
For an earlier discussion of a case where the allegation was that the deceased had a box of money in his house containing $210,000, but only $96,000 was found in a sock, see my blog, The Perils of Keeping Money Under the Mattress, here.
Have a great weekend.