Jointly held / jointly accessed funds are a convenient means of managing two or more people’s finances and were primarily used by spouses. Now, joint accounts are becoming more commonplace with aging parents and adult children, where the elderly parent requires assistance managing their daily affairs.
With spouses, joint accounts automatically pass to the surviving spouse. This is not necessarily the case where joint account holders are parent and adult independent child, where the parent added the child to the account for the purpose of managing finances.
The foremost case in Canada on the issue of jointly held assets is Pecore v. Pecore, 2007 SCC 17:
“People are living longer, and it is commonplace that an ageing parent requires assistance in managing his or her daily affairs…Almost invariably, the duty of assisting the aging parent falls to the child who is closest in geographic proximity. In such cases, Powers of Attorney are routinely given. Names are “put on” bank accounts and other assets, so that the child can freely manage the assets of the parent. Given these social conditions, it seems to me that it is dangerous to presume that the elderly parent is making a gift each time he or she puts the name of the assisting child on an asset. The presumption that accords with this social reality is that the child is holding the property in trust for the ageing [sic] parent, to facilitate the free and efficient management of that parent’s affairs. The presumption that accords with this social reality is, in other words, the presumption of resulting trust.”
- Pecore v. Pecore, 2007 SCC 17, 810-811
For this reason, conflicts arise when the surviving child claims to be entitled to the whole joint account. In this situation, the onus lies on the surviving account holder to prove, on a balance of probabilities, the deceased parent intended to gift to them the proceeds of that joint account.
This is no easy task. First, joint tenancy agreements prepared by the bank at the time the joint account is created are not, in and of themselves, sufficient proof the parent intended to gift the adult child the proceeds of the account upon death. Second, assisting an elderly parent with activities of daily living may not constitute valuable consideration for the account. Third, the surviving account holder must meet legislative requirements and provide corroborating evidence that the deceased parent intended that they maintain the joint bank account pursuant to the right of survivorship. A person cannot simply rely on their own evidence of conversations had with a now deceased person.
If you held a joint account with a parent who has now passed away and would like further information on your rights, please contact us.
If you are an executor or beneficiary of an estate and would like further information on the recovery of jointly held accounts, please contact us.
Initial consultations are free of charge.
For more information, see Pecore v. Pecore, 2007 SCC 17; Madsen Estate v. Saylor,  1 S.C.R. 838, 2007 SCC 18; Niles v. Lake,  SCR 291, Unger Estate (Re), 2014 ABQB 230; Alberta Evidence Act, R.S.A. 2000 c A-18, Section 11