Disputes over joint accounts are becoming increasingly common in estate litigation cases. They generally involve the situation where the deceased depositor or owner of the funds had gratuitously added the name of one or more other persons to the account, thereby creating a joint account. In contrast, it does not involve the situation where the one or more persons named on the account have deposited and withdrawn their own funds, although questions of ownership may also arise in such cases.
If you are involved in a situation where the ownership of a joint account is in question since the passing of one of the joint owners, there are a few things you should bear in mind:
Ensure that the contents of the joint bank account are preserved. Here, if the specific bank account(s) details are known, one should first contact the relevant financial institutions to notify them of the dispute and request that they preserve the account(s) until the matter is resolved. Usually, a lawyer’s letter will be effective to temporarily stop all transactions with the account. Thereafter, it would be prudent to seek a court order freezing the account or restricting its access.
If the details of the accounts are not known, alternate steps can be taken to obtain an order for provision of that information which may include a blanket term that all joint accounts be frozen. In both situations, inquiries should be made about pre-authorized payments or cheques so as not to inadvertently cause a default on a mortgage or other important estate payment. The order being sought should outline if any payments are to be allowed.
In some cases, the court may order that the funds be paid into court. However, one should consider whether this is the best option in the case of a GIC or term deposit which may result in penalties if the fund were cashed in early so that it can be paid into court.
The key to determining ownership of joint accounts after one of the joint account-holder’s death is the intention of the party who created it. Did they intend for the balance to transfer to the surviving account owner on their death or did they intend for it to fall into their estate?
Where a gratuitous transfer is made, it is presumed in law that the grantor intended for the money to be a part of their estate on their death. Therefore, if the surviving joint owner is claiming that it should pass to them, the onus is placed on them to demonstrate that a gift was intended.
One should note that the presumption that it was a gift (also known as the presumption of advancement) is now only available with respect to gratuitous transfers from a parent to minor children.
Evidence of the deceased account holder’s intention may include forms completed for and by the financial institution, which may indicate whether the account was to be a joint account with right of survivorship. Here, the circumstances surrounding the execution of the banking documents should be determined, including where they were signed (i.e. at deceased’s home?), the capacity of the deceased at the time and whether they were fully and properly explained to the deceased before he or she signed them.
Evidence of who accessed the money in the joint account after it was made joint and who reported the income in his or her tax return may also be relevant to determine post-mortem ownership of the joint account.
If you would like assistance in resolving a dispute about ownership of a joint account, please contact Andrea Kelly.
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Andrea Kelly, Lawyer, has extensive experience in wills, estate administration, powers of attorney and real estate matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
