K. Morimoto

Following dismissal of an estate application concerning whether funds in a joint bank account formed part of the deceased’s estate, the court addressed costs.

The respondent had successfully rebutted the presumption of resulting trust by establishing that the joint account was intended to operate as a trust benefiting specified beneficiaries rather than the estate.

The court held that no Rule 49 offer engaged substantial indemnity consequences and that partial indemnity costs were appropriate.

Costs were fixed at $21,289.68 inclusive of disbursements and HST.

The court also directed payment from security for costs and permitted a set‑off against trust funds otherwise payable to the applicant.

The estate trustee applied for a declaration that funds in a joint bank account between the deceased and the respondent formed part of the estate.

The respondent argued the account was created with a right of survivorship and that he held the funds to distribute according to the deceased’s instructions to specific beneficiaries.

Applying the presumption of resulting trust from Pecore v. Pecore, the court examined contemporaneous documents, handwritten notes, and surrounding circumstances to determine the deceased’s intention.

The court concluded that the deceased intended to use the joint account as an estate planning tool, creating a trust in which the respondent would distribute funds to the deceased’s granddaughter, alma mater, and son.

The presumption of resulting trust was rebutted and the funds were not estate property.