Joint Bank Accounts and Estate Disputes in Ontario

A parent dies, and the money in a joint account goes to one child. The other children say it should be shared under the will. The survivor says the parent always meant it to be theirs. This is one of the most common estate disputes.

The answer usually turns on what the parent intended, not simply on whose name is on the account. This article explains the presumption courts start from and the kinds of evidence that tend to matter. It is general information, not advice on your situation.

The starting point: the resulting trust presumption

When a parent gratuitously transfers property to an adult child, including by putting it into joint names, the law presumes the child holds it on resulting trust for the parent, and so for the parent's estate. Gratuitously means the child gave nothing in return.

The child bears the burden of rebutting that presumption. In plain terms, being named on the account does not by itself let the child keep the money. The child has to show the parent meant them to have it.

What the court looks at

The question is the parent's actual intention at the time of the transfer. A court may also consider relevant evidence of the transferor's conduct after the transfer.

Evidence that people commonly gather in these disputes includes:

• Bank records showing who deposited and withdrew money, and when
• Account opening documents and any notes the bank kept
• Who paid the taxes on the account's income, and how the parent treated the money
• Messages, letters or statements from the parent about their wishes
• Evidence from people who heard the parent explain why the account was joint

Which of these will carry weight depends on the facts, and a lawyer can help you assess them.

Winning the presumption does not always mean keeping the money

In one Court of Appeal case, Sawdon, the presumption was rebutted, but the sons were still found to hold the joint account funds under an obligation to share them equally among all five children. So even a survivor who shows the parent meant something other than a simple gift to the estate may not take the whole balance for personal use.

This is why it matters to look at what the parent meant the survivor to do with the account, not only whether the estate wins or loses.

Spouses and dependants are different

Between spouses, the presumption of resulting trust applies as if they were not married. However, property held by spouses as joint tenants is proof, absent contrary evidence, that they intended to own it jointly, and money on deposit in both spouses' names is deemed held as joint tenants. That makes the spouse's position different from an adult child's.

There is also a separate support context. For a dependant's support claim under the Succession Law Reform Act, money in a joint account that passes to the survivor on death is treated as a testamentary disposition at the date of death, and the same applies to property held as joint tenants. These count in the net estate only to the extent the funds or consideration came from the deceased, and the dependant must prove that the funds or property belonged to the deceased.

What to do next

• Gather statements for the account from before and after it became joint
• Write down what the parent said about the account and who heard it
• Note the dates, since time limits can apply to estate claims
• Avoid moving or spending the disputed money until you have advice
• Speak to an estate litigation lawyer about whether to claim, defend or negotiate

Many of these disputes depend on timing, and some claims have a general two-year period that starts when the claim is discovered, or when a reasonable person ought to have known of it. Because exceptions exist, confirm your deadline early.

Frequently asked questions