Estate Planning

Videchak v. Giarratano - An exception to Pecore v. Pecore?

By Hull and Hull LLP

Today's blog looks at the case of Videchak v. Giarratano, 2009 CanLII 29914 (Ont. S.C.), which deals with, amongst other things, the common situation of an adult child holding assets jointly with a parent. Pecore v. Pecore, [2007] 1 S.C.R. 795 (S.C.C.) would tell us that in such situations, after the death of the parent, it is up to an adult child, who is not a dependant, to rebut the presumption that a resulting trust arises such that the asset, received for no consideration, is held for the benefit of the estate (that is, where the transfer into joint ownership is made for no consideration, the onus is placed on the adult child to demonstrate that a gift was intended).

In this case, the Ontario Superior Court held that the presumption applied to a joint bank account held by the Deceased together with one of her children, Anna. While Anna and two of her siblings, Joe and Nina, gave evidence that they were all aware that the joint account was to go to Anna on their mother's death, there were no bank or other documents and no independent persons to provide evidence upon which a court could make a finding that the presumption of resulting trust was rebutted.  The Judge found that it is well known that elderly people have a joint bank account in order to make sure that debts are paid on time, and to ease the pain of probate. The account was found to be an asset of the estate.

However, in this case the Court came to the opposite conclusion with respect to a GIC jointly held by the Deceased with Joe and Nina. According to the Judge, the GIC clearly stated the three names on it and was different than the bank account 'because it is basically a savings item and not to be used to pay ongoing debts.' The Judge held that the GIC document spoke for itself and the two owners of it at the death of the Deceased were Nina and Joe. One might argue that this case seems to exempt jointly held GIC's from the application of Pecore.

Thanks for reading,

Craig

Full post as published by Toronto Estate Law Blog on November 24, 2010 (boomark / email).