What is the test for survivorship when a joint account holder challenges a gratuitous transfer to the joint account?
British Columbia, Canada
The following excerpt is from Simard v Simard Estate, 2021 BCSC 1836 (CanLII):
In summary, where a gratuitous transfer to a joint account is challenged, the presumption of resulting trust arises and it falls to the surviving joint account holder to prove that the transferor intended to gift the balance in the account at their death. Otherwise, the account balance will be treated as part of the transferor’s estate to be distributed according to their will: Pecore at para. 53. In other words, when legal title is transferred gratuitously and a resulting trust arises, the right of survivorship is held on trust by the transferee unless otherwise established: McKendry v. McKendry, 2017 BCCA 48 at para. 36.
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