D. Rose

In an estate dispute involving a will challenge and alleged resulting trust over joint bank accounts, the applicants sought an interlocutory order restricting an adult child’s access to joint accounts held with the deceased.

The court applied the presumption of resulting trust articulated in Pecore v. Pecore, which places the burden on the surviving joint account holder to establish that the deceased intended a gift of survivorship.

The court found that the respondent’s evidence rebutting the presumption was thin and raised a serious issue to be tried.

Given the risk of depletion of estate assets before trial, the court limited the respondent’s withdrawals from the accounts to $2,000 per month pending trial.

Costs were ordered in the cause.

The moving defendants sought an order requiring the corporate plaintiff to post security for costs under Rule 56.01(1)(d) of the Rules of Civil Procedure.

The plaintiff acknowledged having insufficient assets in Ontario but asserted that it was impecunious and unable to post security.

The court held that the evidentiary threshold for establishing impecuniosity was high and required detailed financial disclosure, including evidence of the financial circumstances of the corporation’s principals.

The plaintiff failed to provide sufficient documentary or financial evidence demonstrating either corporate impecuniosity or the inability of its shareholders to raise funds for security.

Given the lack of proof of impecuniosity and the neutral merits of the claim, the court ordered that security for costs be posted and stayed further steps in the proceeding pending determination of the amount and timing.