Estate trustees frequently discover, well into an administration, that the deceased held one or more bank accounts jointly with another person, often an adult child. The question that follows is a practical one: does the surviving joint holder have to come forward and disclose the account, or can the estate trustee only find out what the survivor chooses to reveal? The answer in Ontario is more nuanced than a simple yes or no, and it turns largely on the survivor’s relationship to the deceased and to the estate.
No General Duty to Disclose
As a starting point, Ontario law does not generally impose a free-standing statutory, common law, or equitable duty on a surviving joint account holder to notify an estate trustee or beneficiaries that a joint account exists. The joint deposit itself is treated as a gift made inter vivos, of the survivorship right, rather than as a testamentary disposition. That survivorship mechanism, however, is distinct from who is ultimately entitled to the beneficial interest, which may depend on intention and the resulting trust analysis described below. Because the estate trustee’s accounting obligations attach to the trustee in relation to estate assets, they do not usually extend to a non-fiduciary survivor simply by virtue of joint legal title.
This general position does not mean a beneficiary is left entirely without recourse. In Moskoff v Moskoff Estate (1999), 34 ETR (2d) 57 (Ont Sup Ct J), a beneficiary who had been told that certain term deposits were joint assets that passed by survivorship moved for an order compelling the estate trustees, not the surviving joint holder, to produce documentation about them. The Court held that the trustees had an obligation to provide the beneficiary with minimum proof that survivorship had in fact occurred: confirmation of the right of survivorship, the registration on the deposit, and its date of issuance, but not the amounts, interest rates, or current location of the funds, out of regard for the surviving holder’s privacy. Rule 74.15 of the Rules of Civil Procedure, RRO 1990, Reg 194, gives the Court broad discretion to make this kind of order at a beneficiary’s request. The case is therefore authority for what a beneficiary can extract from the estate trustees about a joint account, not for any independent duty running from the surviving joint holder to the trustees or beneficiaries.
The Pecore Framework Changes the Analysis
The Supreme Court of Canada’s decision in Pecore v Pecore, 2007 SCC 17, [2007] 1 SCR 795, is the governing authority once a gratuitous transfer into joint names is challenged. The Court held that such a transfer attracts a rebuttable presumption of resulting trust: the survivor, not the estate, bears the onus of proving that the deceased intended to gift the right of survivorship. Absent that proof, the funds remaining in the account at death are treated as part of the deceased’s estate notwithstanding the joint legal title. Because the rights of survivorship vest at the time the account is opened, the Court characterized the gift as inter vivos in nature: the transferee’s interest in whatever balance remains at death, not in any fixed sum. No reported Ontario decision appears to convert the presumption of resulting trust, on its own, into an independent disclosure duty on the survivor’s part. The presumption shifts a burden of proof if and when the estate challenges the transfer; it does not, on the current state of the case law, require the survivor to come forward voluntarily.
Where a Positive Duty Does Arise
Disclosure obligations do arise, however, once the survivor occupies a fiduciary role with respect to the deceased or the estate. A person who managed the deceased’s affairs under a continuing power of attorney for property owes a duty to account for all transactions undertaken in that capacity, including the operation of a joint account into which the grantor’s funds were deposited, a duty an estate trustee may enforce by standing in the shoes of the deceased. A different and arguably more direct obligation arises where the surviving joint holder is also the estate trustee. In Spisak v Spisak, 2023 ONSC 4726, the respondent, who was both the surviving joint account holder and the estate trustee, used the account’s funds for her own purposes and was slow and evasive in responding to the applicant’s inquiries, producing the account’s bank statements only after two court orders. Among these findings, the Court held that she breached her fiduciary duty by failing to disclose and substantiate that the joint account had passed to her by survivorship, and, having failed to rebut the presumption of resulting trust, was found to hold the account on resulting trust for the estate. The case illustrates that non-disclosure becomes actionable where it forms part of a broader pattern of fiduciary misconduct by a trustee-survivor; it does not establish that silence about a joint account is, on its own and without more, a breach of duty.
Constructive Trust and Unjust Enrichment in Context
Claims in unjust enrichment or constructive trust against survivors of joint accounts are context-dependent, and, on the research reviewed, face an additional hurdle illustrated by Cameron Estate (Re), 2011 ONSC 6471, a decision arising in a bankruptcy context in which a bank sought to reach a bankrupt’s interest in jointly held matrimonial homes. There, the Court reasoned that automatic vesting of title in a survivor does not “enrich” the survivor at the estate’s expense in the relevant sense, since each joint holder acquired an inchoate right of survivorship, and accepted the corresponding risk of predeceasing the other, at the time the property was acquired. This reasoning has not, on the research reviewed, been generalized into a settled rule across Ontario decisions involving joint bank accounts specifically, and it should not be read as foreclosing recovery in appropriate cases. Where a survivor has taken unfair advantage of a vulnerable account holder, or cannot rebut the presumption of resulting trust, resulting trust and breach of fiduciary duty remain the pathways most frequently pursued in the authorities reviewed; constructive trust or unjust enrichment may still be available on suitable facts.
Practical Takeaways
Where a joint holder can rebut the presumption of resulting trust by establishing the deceased’s intention to confer the survivorship benefit, the account ordinarily passes outside the estate as a matter of legal title, and, absent a fiduciary relationship, no general duty to volunteer disclosure is typically engaged. Where the presumption is not rebutted, the survivor holds the funds as a resulting trustee from the time of the transfer and owes a strict duty to account, though nothing compels the survivor to render that account unprompted, unless and until the estate or a beneficiary calls on them to do so, or unless the survivor also happens to be the estate trustee or an attorney for property, in which case a freestanding fiduciary duty to account already applies. Where the estate trustee is unable to obtain that information directly and a beneficiary has a financial interest in the estate, the beneficiary can, as in Moskoff, seek a court order requiring the trustee to make that inquiry and report back, subject to appropriate limits on the survivor’s privacy.