PRESUMPTION OF RESULTING TRUST – PT # 639

We have discussed this concept many times, but because it is such a common factor in people’s lives and estate litigation that it is such a rich source of judicial interpretation. In the 2025 case of Morden v. Niwranski  2025 ONSC 3105 we had a contest between the late husband’s Mr. Lagana’s estate and his surviving common law spouse Ingrid Niwranski. Mr. Lagana left as we have described before, the worst bitter pill and gift one can to a common law spouse, namely preparing no Will. The bank account of the late Mr. Lagana had been placed in a joint account of he and his common law spouse. Mr. Lagana’s daughter of his first marriage had attempted to apply the presumption of resulting trust from Pecore v. Pecore. As Estate Litigation Lawyers well know a successful resulting trust would have taken the assets back from the widow and placed it in Lagana’s estate.  Result, to the daughter. However, interesting in that case the financial planner said that it was his normal practice to discuss and explain the right of survivorship when a joint account was opened. He stated that it was his common practice to always explain what joint with right of survivorship meant. However he could not recall the specific discussion he had with Lagana and his common law spouse. The court felt that this was enough to rebut the presumption of resulting trust. Again, it was not based upon the closeness of the relationship, but rather because there was third party objective evidence which is so critical in dealing with these disputes. Again, one always needs the assistance of an experienced estate litigator and perhaps even more importantly having an experienced Will drafting lawyer to address these issues head on at the time that one’s Will is prepared.