Wills and Probate lawyers have repeatedly addressed the presumption of resulting trust (just use our search function to find our blog articles on the topic). Simply a fancy term that just because ownership is registered in two or more names, that is not conclusive proof that the receipt by the survivor is what was actually intended. The presumption of resulting trust is based upon the legal concept that no one gets anything for free. And if you got something for free, then you need to prove that the person who gave it to you had so intended. Example, your father adds your name to his bank account as a joint owner. Even though the bank should treat all those funds as yours upon your father’s death, the law will start with the position that the bank account belongs to your dad’s estate, not you.
It is extremely common in estate planning, usually done at the kitchen table, to place various assets in joint ownership with the right of survivorship or with a named beneficiary.
There have been some judicial rumblings that all of this kitchen table estate planning is not enough and is dragged back in under the legal heading of the presumption of resulting trust. In simpler terms, dad never meant for you to get his RRSPs when he simply named you as the beneficiary, you did nothing to receive it and therefore it should be part of the estate. Same thing as in our example above.
To further complicate matters, we have the 2025 Alberta decision in the Syryda Estate v. Rathwell. In that case, many years after the estate had been divided up, various beneficiaries under the Will complained when they learned that other assets of the deceased passed outside of the Will by virtue of joint ownership of a bank account created more that 20 years before death. The executor had the beneficiaries under the Will sign releases. The court threw the releases out saying you failed to disclose those assets that passed outside of the Will, and we are going to make everybody start from scratch and that the executor should have disclosed the jointly held assets that passed outside of probate. The question becomes what does an executor applying for probate have to reveal about these types of assets. The existing Ontario forms do not call for that disclosure.
While this is a logical extension of the presumption of resulting trust, it completely destroys kitchen table estate planning. Estate lawyers beware!
As long standing Lawyers in Brampton for wills, our office does indeed use a much more sophisticated model such as seen under our Full Monty process. However, that is far more expensive than a standard Will. There is much that will negatively impact all concerned if this case is regularly and faithfully followed. Clearly fodder for Estate Litigation Lawyers.
The solution is properly papering ones actions. Your lawyer can assist in preparing a proper statement, or deed of gift to confirm what was indeed intended when a joint bank account, or even beneficiary designation is created.
