Earlier this week, I attended the “Working Effectively with Banks” OBA Trusts and Estates Law Program presented by the Canadian Bar Association. In this program, the program speakers, Robin Spurr, senior estates counsel at the Canadian Imperial Bank of Commerce, and Kwende Thomas, senior counsel at the TD Bank Group, answered questions posed to them by the program chairs and attendees.
Here are my key takeaways from the program:
Joint vs Joint and Several Appointments of Multiple Attorneys for Property
The program speakers mentioned that the appointment of joint attorneys for property can be logistically difficult when interacting with banks. Banks may not issue bank cards to joint attorneys and so joint attorneys may not be able to use an automated teller machine (ATM). Additionally, joint attorneys may not have access to banks’ online services. Nonetheless, measures can be taken by joint attorneys to ease some of the logistical difficulties, such as automating banking transactions as much as possible.
Where multiple attorneys are appointed jointly, the program speakers also mentioned that clauses in power of attorney documents that provide authority to one attorney to sign documents on behalf of all attorneys are not effective as banks still require confirmation that all attorneys agree to all decisions.
Conversely, joint and several attorney appointments can provide more flexibility. However, as a risk mitigation measure, banks may require joint instructions from all attorneys if there are any indications of conflict between the attorneys.
Joint Accounts and the Right of Survivorship
The program speakers mentioned that banks generally do not recognize resulting trusts on joint accounts. Generally speaking, the account service agreements that customers sign with banks when opening joint accounts provide that the surviving account holder would have legal ownership of all proceeds in the joint accounts upon an account holder’s death. Accordingly, banks will allow the surviving account holder to access and use all proceeds in joint accounts even if the deceased account holder intended his or her estate to receive the proceeds. The program speakers suggested that if the beneficiaries of the estate have any objections to this, they will need to get a court order directing a bank to act otherwise. Alternatively, they mentioned that customers can open trust accounts if they wish for their estate or someone other than the surviving account holder to benefit from the proceeds in such accounts.
The insights provided by the speakers shed light on the bank’s perspective in dealing with many estate and trust matters that estate lawyers, attorneys for property, and estate trustees deal with on a regular basis.
Thank you for reading.