Can You Challenge a Joint Account Claimed After a Parent's Death in Ontario?

A parent dies, and you learn that a sibling was on their bank account and has taken the balance. The will says the estate is to be shared, but the money never reached the estate. It is natural to ask whether that can be right.

Sometimes it is, and sometimes it is not. The answer depends on what the parent meant when the account was opened or the child was added. This article explains the general rules in Ontario and the kinds of evidence that usually matter.

Why a joint account can bypass the will

Property passes to the estate trustee (personal representative) only if no one else has a right to take it by survivorship. Property that does pass by survivorship goes straight to the surviving owner, whether or not there is a will. A deceased joint tenant's interest goes to the surviving joint tenant, not to the beneficiaries named in the will.

Many joint accounts carry a right of survivorship, so the surviving holder becomes the account owner. That is why the balance may never have appeared in the estate's list of assets.

The presumption that can work in the estate's favour

For gratuitous transfers, the presumption of resulting trust is the general rule, and the person receiving the transfer has the onus of showing a gift was intended. An adult child added to a parent's account or asset without paying for it is presumed to hold it in trust for the parent and, on death, for the estate.

There is an exception for minor children. The presumption of a gift is confined to minor children, and an adult child's financial dependency does not trigger it, although dependency can be strong evidence against a resulting trust.

Between spouses the rules differ. Money on deposit in both spouses' names is deemed held as joint tenants.

What evidence can show the parent's intention

Courts may look at several things when deciding what the parent intended at the time of the transfer. Later evidence can be considered if it is relevant to that intention.

• The wording of the bank documents.
• Who controlled the account and used the funds.
• Whether the parent granted a power of attorney.
• How the account was treated for tax purposes.

Survivorship rights vest when the account is opened, so a gift is made during life, and what is gifted is the survivor's interest in the balance at death. Heirs may challenge the survivor, who may then need to show the parent intended the funds as a gift.

Other routes and practical limits

A joint asset the survivor holds on resulting trust for the estate does not escape estate administration tax, because the estate value includes property held in another person's name.

If you were a dependant, a separate route may exist. A dependant is a spouse, parent, child, or brother or sister whom the deceased was supporting, or was legally obliged to support, immediately before death. For a support claim, money deposited in an account in the deceased's name and another person's is deemed part of the net estate. Only the portion that belonged to the deceased immediately before the deposit is counted. The dependant must prove the funds belonged to the deceased.

Timing matters. No support application may be made more than six months after the certificate of appointment is granted. The court may allow an application at any time for any part of the estate still undistributed. Also, payments by a bank can still be made unless a certified copy of a suspensory order has been personally served on it.

What to do next

• Ask the estate trustee for the account opening documents and statements, if you can get them.
• Note when the survivor was added, who deposited the money, and who used it.
• Collect anything showing the parent's wishes, such as a power of attorney or letters.
• Do not delay if a support claim is possible, because deadlines run from the certificate.
• Speak with an Ontario estates lawyer before confronting the account holder.

Each case turns on its own facts, so a lawyer can tell you how strong a claim is and which step to take first.

Frequently asked questions