Rebutting the Presumption of Resulting Trust
I recently blogged on the Supreme Court of Canada's decisions in Madsen Estate v. Saylor and Pecore v. Pecore.
Specifically, I discussed the ruling that funds in accounts jointly held between parents and adult children will be presumed to form part of the parent's estate if the parent dies; i.e., there will be a presumption of a resulting trust.
The adult child must then prove that the deceased parent intended to gift the funds to him or her by naming him or her as a joint owner.
In Pecore, the Supreme Court addresses the evidence that may be used to defeat the presumption and prove that the parent intended to gift the funds in the account, including the following considerations:
- Whether the banking documents pertaining to the account show the parent's intent;
- Who controlled and used the funds prior to the parent's death?
- Whether the deceased parent had a power of attorney. If so, this would suggest that the account may not have been held jointly for banking purposes; and
- Who paid the taxes on the account prior to the parent's death?
The Supreme Court points out that these considerations are fact-sensitive and that the trial judge must consider the totality of the evidence and the weight to be placed on any particular factor.
Thanks for reading,
Jason Allan
