While the preparation of a current and valid will can go a long way in ensuring your estate is not subject to litigation when you pass, there can often be other factors in one’s life that complicate whether or not the instructions in a will can be carried out. This is a lesson well demonstrated in a recent decision from the Supreme Court of Newfoundland and Labrador. The deceased (the “Deceased”) died on May 7, 2009, she was survived by ten children. Her will divided her estate equally amongst just three of the children. While the remaining children did not dispute the validity of the will, they did challenge whether three joint bank accounts and two investment accounts should have been considered part of the estate, arguing instead that they should have been considered held in trust for all ten children. The accounts The investment accounts in question were held solely by the Deceased. The three bank accounts were held jointly between the Deceased and one of the children not named a beneficiary under the will. Employees of the bank where the three joint bank accounts were held testified about what they understood about the accounts when they were opened. One witness recalled the Deceased saying the son named as the joint owner of the accounts was going to look after it, but that she wanted all of the children to have what was in it. The manager, who also testified, said she explained to the Deceased that if she were to die, the contents of the accounts would be owned solely by the accounts’ co-owner. Her son who was the co-owner of the accounts also testified that his mother knew the account would remain with him upon the event of her death. Meanwhile, one of the children named as a benefactor said she thought the co-owner of the accounts knew their mother planned to cut him out of the estate acted to get himself named on a bank account. One of the financial investment agents who helped set up the investment accounts testified that the Deceased said she wanted all ten children to be named beneficiaries of the accounts should she die. Another one of her children, who acted as her power of attorney, also testified with a similar recollection. Again, one of the beneficiaries testified that their mother was angry that all ten children were named on the investment accounts, and that she intended to have the accounts changed. A resulting trust?  The presumption of a resulting trust is a common law tool used to allow the courts to determine that a deceased person intended to have an account turned over to their estate when adding someone as a co-owner prior to their death, with the co-owner not having contributed to the account. It’s up to the co-owner of the account to provide evidence to rebut this presumption. In this situation, if the accounts were found to belong to the estate, only the three children named as beneficiaries would be entitled to the accounts. However, the remaining seven children could attempt to convince the court to rebut the presumption. Establishing intent      The court looked carefully at the Deceased’s behaviour in the years after her husband died, as well as the way she managed her financial affairs. Evidence was given that showed the mother had a habit of relying on various “go-to”  people for different parts of her life, with just one person being involved in each part. In this case, the child named on the bank accounts was found to have been included so that he could ensure the contents of the accounts would be split amongst the children. The co-owner of the account had helped the Deceased’s father with banking while he was alive, and the court found it natural for her to continue to rely on him for help after the husband died. The court also believed the evidence that pointed to the Deceased intending for her investment accounts to be split amongst her ten children. Having a current and valid will is one important aspect to estate planning, but planning for the future of your family, loved ones, or business involves many more important decisions. The exceptional lawyers at NULaw provide our clients with proactive legal advice designed for your wishes to be followed through after your passing. We work with our clients to understand their options, minimize legal and financial risk, and protect loved ones. Please call us at 416-481-5604 or reach us online to see how we can help you today.

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