2007 S.C.C. 17
An aging father gratuitously placed his mutual funds, bank accounts and income trusts in joint account with his daughter. The amount was $1,000,000. And the accounts began transferring in 1993. He died in 1998. The father wrote letters stating assets were 100% his to avoid deemed transfer capital gains tax. The father was told about avoiding probate fees. The father told the lawyer drafting his will that his RRSP’s life insurance were looked after.
The presumption of resulting trust places the burden of proof on the transferee to demonstrate a gift, unless there is a presumption of advancement which no longer applies to adult children. Evidence of degree of dependence of an adult child may provide strong evidence to rebut presumption of resulting trust.
The balance of probabilities is the standard of proof to rebut presumptions.
If the transferor gifts withdrawal rights and right of survivorship the presumption of resulting trust is generally rebutted.
The gift is the transferee’s survivorship interest as the account balance may fluctuate over time.
Evidence of intention subsequent to transfer may be admissible if relevant to the intentions of the transferor at the time of the transfer. Evidence that is self serving or tends to reflect a change of intention must be guarded against.
Bank documents that express the transferor’s intent as to the beneficial interest in clear language may carry much weight as to proving intention.
Use and control of the funds is relevant to considering intention.
Granting a power of attorney may be significant if transferor appreciated distinction between the power of attorney and joint bank account.
Tax related evidence may be relevant but, not determinative.
Statements made by the transferor confirming intention to make a gift are important.
Dependency is important as are relationships.