As my blog post earlier in the week illustrated, estate litigation is no stranger to gratuitous transfers of property between parents and their adult children. And the recent case of Maltman (Estate) v. Playter, 2024 ONSC 6856 provides a textbook example of the principles in Pecore v. Pecore, 2007 SCC 17 in the context of bank accounts held jointly between parents and their adult children.

Following a motion for directions, there were principally two issues to be tried:

1. Whether the deceased’s daughter had to disgorge the proceeds of a non-registered TD investment account, which had been held in the joint names of the deceased and his daughter; and
2. What was the appropriate amount to be disgorged from a TD chequing account, which had been held in the joint names of the deceased and his daughter.

With respect to issue 1, the deceased’s daughter received by right of survivorship the proceeds of the non-registered TD investment account but the Estate sought to argue that the proceeds were being held by the deceased’s daughter in trust for the Estate. In concluding that the defendant’s daughter was entitled to the entirety of the proceeds of the non-registered TD investment account, the Court made the following findings:

1. The solicitor who had assisted the deceased confirmed that the deceased was “sharp, cogent, had capacity, and understood the nature of his assets and liabilities.”
2. The BMO investment account agreement entered into in 2005 indicated that the deceased’s intent “was this [his daughter], and not his Estate, receive the funds on his death… The conclusion that this was his intent is supported by the evidence of [the deceased’s investment advisor] that [the deceased] wanted [his daughter] to have the beneficial interest… The TD investment account agreement in 2012 evidences that [the deceased] continued to have the same intent.”
3. The execution of the deceased’s last will “could not and did not alter the transfer [the deceased] made on November 2, 2012, as evidenced by the TD banking documents.”

With respect to issue 2, the deceased’s daughter acknowledged that while she owed the Estate money that was in the TD chequing account when the deceased passed away, she was also entitled to deduct a certain portion as compensation for services her husband provided to the deceased in preparing a home owned by the deceased for sale. The Court noted that the Estate did not take issue with the fact that a lot of work had been done by the daughter’s husband, but it was difficult to determine whether the hours spent were reasonable because he had neither testified nor provided affidavit evidence. As such, a reduced amount of compensation was fair in the circumstances.