CANADA Trends and Developments Contributed by: Ian Hull, Suzana Popovic-Montag and Nick Esterbauer, Hull & Hull LLP
ered when determining whether a joint account actu - ally includes a right of survivorship, or whether the presumption of resulting trust applies. Those factors include: • events prior to the transfer; • tax or financial advice received by the donor; • bank documentation; • past family experience with joint accounts, includ - ing whether other family members have used a joint account to gift a financial asset to the donor; and • the proportionality of the alleged gift relative to the economic position of the donor. As noted by the court, “common sense tells us that the larger the value of an asset put into the hands of another, the less likely it was intended as a gift”. If the donor is deceased, evidence given by the donee as to the donor’s intent must also be corroborated. In Waters v Henry (2024 ONSC 4190), the court noted that “there is no magic list of factors to be considered” when assessing a donor’s intention with respect to a right of survivorship. While bank documents may be relevant to whether a joint bank account includes a right of survivorship, such documents on their own are often inadequate to establish that a right of survivorship was intended. For example, in Gastle v Gastle Estate (2017 ONSC 7797), the court held that checking a box on a bank signature card that designated the account as joint with a right of survivorship was insufficient to prove that a right of survivorship was intended. However, the Supreme Court of Canada noted in Pecore v Pecore that bank documents may have sufficient detail to pro - vide “strong evidence of the intentions of the trans - feror regarding how the balance in the account should be treated on his or her death”. Ultimately, the clearer the bank documents are, the more weight such evi - dence may carry. If there is evidence confirming that the donor dis - cussed the implications of making an account joint with a bank employee, including a right of survivor - ship, the court may be more inclined to find that the donor intended to gift a right of survivorship in the
account, as was the case in Mordern v Niwranski (2025 ONSC 3105). If a gift of the right of survivorship is intended, the donor will retain the right to deal with that financial asset while they are alive, and may denude the gift prior to their death by spending the financial asset or moving it. Under these circumstances, the Manitoba Court of Appeal confirmed in Schrof v Schrof (2025 MBCA 49) that a donee will receive nothing, despite the right of survivorship. Funds deposited into a bank account posthumously cannot be the subject of an inter vivos gift if there is no evidence that the donor knew that the deposits would be made. The court held in Garbera Estate that “[t]here can be no intention to donate”, which is a necessary legal element of a gift, “if the alleged donor does not know that the item exists”. The court also suggested that a posthumous deposit cannot be the subject of an inter vivos gift in light of existing case law which holds that gifts intended to take effect at an indeter - minate time for an indeterminate amount are not valid. In Waters v Henry (2024 ONSC 4190), the court con - firmed that the presumption of resulting trust will apply if a donor gives a donee property that they control as a fiduciary, rather than property that they own personal - ly. A donor cannot form the requisite donative intent to give property that they do not own. Prior to his death, the donor in Waters v Henry gave his partner funds that he controlled as an attorney for property for his wife. Following the donor’s death, the donor’s estate brought a claim against his partner for the return of the funds transferred to her. The court required her to return the funds taken from the wife due to the presumption of resulting trust. Since the deceased’s partner was also the wife’s caregiver, the court also held that it would be unconscionable for the partner to keep funds that belonged to the wife and were gifted under a power of attorney. Succession and estate planning involving rights of first refusal and options to purchase There is a growing body of case law in Canada inter - preting wills that permit specified beneficiaries to pur - chase estate property, rather than give estate property to the beneficiary outright. Such will clauses may be
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