Court File and Parties
Court File No.: CV-20-1063-00ES Date: 2023-10-23 Superior Court of Justice - Ontario
Re: Estate of Dorothy Julia Renwick and Elizabeth Ann Miller as an Estate Trustee for the Estate of Dorothy Julia Renwick, Applicants And: Pamela Stanberry, Respondent
Before: Gibson J.
Counsel: Christopher Crisman-Cox, Counsel for the Applicants Leslie U. Protopapas, Counsel for the Respondent
Heard: August 30, 2023
Endorsement
Overview
[1] This is an application regarding the estate (the "Estate") of Dorothy Julia Renwick (the "Deceased"). The Applicant Elizabeth Ann Miller ("Betty") is the Deceased's daughter, and one of the two Estate Trustees of the Estate. The Applicant's step-sister, the Respondent Pamela Stanberry ("Pamela"), is the other Estate Trustee. Pamela and Elizabeth are step-sisters having the same mother (the Deceased), but different fathers.
[2] This application primarily concerns certain joint bank accounts (the "Disputed Accounts"). Betty is asking that this Court determine that these Disputed Accounts belong to the Estate rather than to Pamela. She is also asking for an updated accounting from Pamela regarding the Disputed Accounts.
[3] Pamela says that the Disputed Accounts should belong to her, by right of survivorship. She submits that the Deceased intended by her actions and the documentation that was signed in the bank branch to provide for the accounts to be joint with right of survivorship so that they would belong to Pamela if she died first, and not be part of her estate assets.
[4] Additionally, Betty is asking that that Pamela deliver the Deceased's ashes to her, so that she may inter them in accordance with the Deceased's wishes. This still remains to be done five years after the Deceased's passing.
Summary of Facts
[5] The Deceased passed away on September 3, 2018. A Certificate of Appointment of Estate Trustee with a Will was issued to the parties on July 29, 2019. Pamela and Elizabeth are co-executors.
[6] The Deceased, at the time of her death on September 3, 2018, held the following accounts in the joint names of herself and Pamela at TD Canada Trust Branch Number 3823 (the "Disputed Accounts"):
PDA 0001163 $6,756.27; PDA 3302681 $16,402.97; PDA 6232219 $3,780.55; PDA 6290995 $74,897.61; PDA 6367866 $14.54; and GIC 8051996-10 $26,389.47. The total of these accounts was $128,241.41.
[7] The Deceased also held two other bank accounts in her sole name at the time of her death, totalling $23,948.61.
[8] Accounts 0001163, 3302681, and 6232219 were each put into the joint names of the Deceased and Pamela as of May 21, 2014. Account 6367866 was apparently made a joint account as of May 21, 2015. It is not clear on what date account 6290995 and the GIC were made joint.
[9] For each joint account except 6290995 and the GIC, the Deceased and Pamela initialed a signature card, which checked off a box indicating the account was joint with survivorship. No such card was located for account 6290995 and the GIC.
[10] An identical financial services agreement applied to each account, with a version dated November 1, 2011, being in effect at the time the joint accounts were set up, and an updated version going into effect as of March 1, 2016. Both versions of the financial services agreement contain language at paragraph F4 describing the terms that apply to joint accounts.
[11] There is no direct evidence in the record as to what was specifically discussed between TD Bank and the Deceased regarding: (a) the meaning and effect of the signature card; (b) the terms regarding joint accounts in the financial services agreement; (c) the differences between a joint account with or without survivorship; and (d) the Deceased's specific intention in checking off the survivorship option on the signature cards (for example, whether the intention in doing so may only have been an attempt to avoid probate fees).
[12] Sandra Oliveira was examined as a representative of TD, but Ms. Oliveira was not present at the time any of the Disputed Accounts were made joint and was only able to speak as to TD's general procedures when setting up a joint account.
[13] The application for a Certificate of Appointment included the Disputed Accounts as Estate assets. Pamela signed the application and swore that this was accurate. Pamela did so after discussing the matter with her legal counsel. Pamela swears that she specifically discussed with her counsel the presumption of resulting trust with respect to the joint accounts, before she swore as to the value of the Estate assets.
[14] The evidentiary record also contains an affidavit sworn September 15, 2020, from Linda Stredwick, a friend of the Deceased, with respect to statements the Deceased allegedly made to her regarding the Disputed Accounts.
[15] The Deceased's Will, which contains various other explanatory comments regarding the Deceased's bequests, is silent as to the Deceased's intentions with respect to the Disputed Accounts. There is no mention that Pamela is to receive sole beneficial ownership of the Disputed Accounts.
[16] In response to this application, Pamela did provide transaction histories with respect to the Disputed Accounts, but these only go up to mid-September 2020. If the joint accounts are determined to be Estate assets, Betty requests an updated accounting with respect to the Disputed Accounts.
[17] The Deceased's Will expresses a wish that she be cremated, with her ashes interred in Newfoundland. Pamela currently remains in possession of the Deceased's ashes, five years after her death. She has yet to inter the ashes. Betty seeks to have the ashes delivered to her, so that she can inter the ashes in accordance with the Deceased's wishes.
Issues
[18] There are three issues to be decided on this application:
Are the Disputed Accounts assets of the Estate via the presumption of resulting trust, or is Pamela able to rebut this presumption?
If the Disputed Accounts are Estate assets, should Pamela provide an updated accounting of them? and,
How should the Deceased's ashes be dealt with?
Law and Analysis
Issue 1: Presumption of Resulting Trust
[19] It is well-established that there is a presumption of a resulting trust that arises when adult children hold joint accounts with their elderly parents. The presumption is that, upon the parent's demise, the money does not pass by right of survivorship to the child; rather, it is held in a resulting trust for the estate: Pecore v. Pecore, 2007 SCC 17 at paragraphs 24-26, 36 ("Pecore").
[20] The presumption of resulting trust may be rebutted, but the onus is on the party seeking to displace the presumption to present evidence sufficient to establish on the balance of probabilities that the parent intended for the child to receive a beneficial interest in the account: Pecore, at paragraphs 25, 42-44. Evidence proffered to rebut the presumption of resulting trust should ideally be contemporaneous or close to contemporaneous with the time the account was made joint: Pecore, at paragraphs 56-59.
[21] Pamela submits that I should look at several different factors in trying to determine what was the intent of the Deceased: the documentation signed at the TD Canada Trust bank branch; the evidence of Pamela as to what she did for her parents; the affidavit evidence of Linda Stredwick, a family friend; what the Will itself provides, including what it does not say about the accounts; what Betty had not done; relevant caselaw; the evidence of a bank employee as to what TD Bank does when they attend to a customer in such circumstances; and the TFSA account, which has Pamela as a beneficiary, which is not disputed. I agree that these are all logical indicia which might be potentially relevant in assisting in attempting to determine the Deceased's intent. Unfortunately for the Respondent, I do not assess that a global consideration of these factors ultimately assists her position.
[22] In the present case, the primary evidence put forward by Pamela to rebut the presumption of resulting trust is the signature cards created at the time the Disputed Accounts were set up, which show that the Deceased checked off a box for the Disputed Accounts to have a right of survivorship. Pamela also presents the associated financial services agreements.
[23] There have been several cases that have examined this genre of issue, and, broadly speaking, have determined that this is not sufficient: Gastle v Gastle, 2017 ONSC 7797 ("Gastle)"; Calmusky v Calmusky, 2020 ONSC 1506 ("Calmusky"); Turner v Milne, 2021 BCSC 1370 ("Turner"); and, Kolic v Kolic, 2019 BCSC 1463 ("Kolic").
[24] In Gastle, the case most similar on its facts to the present case, the deceased similarly checked off a box at a local TD Bank branch (located in the same geographic area as the one in this case), to indicate that a joint account with his son had a right of survivorship. The Court did not accept that as sufficient to rebut the presumption of resulting trust. Rather, at paragraphs 29-30, Braid J. held that:
The fact that [the deceased] checked off the box to designate right of survivorship is simply proof that he understood that the accounts would not pass through the estate. This is not evidence that [the deceased] intended to gift the accounts to [his son]."
[25] Pamela's counsel has obtained a copy of the specific signature card at issue in Gastle. It is not substantively different from the signature card in the present case. It contains basic information about the account, boxes to check yes/no for survivorship, a place for the account holders to initial, and another set of boxes to indicate whether one or both account holders have to sign for transactions.
[26] Pamela submits that the distinction between the signature card in Gastle and the ones in the present case is that, at the top of the ones in this case, there was a reference to a financial services agreement.
[27] The intention of the Deceased is a key consideration. But I am not persuaded that the reference to the financial services agreement assists Pamela in this case. While the financial services agreement contains further explanation as to the meaning of "survivorship", there is no evidence that the Deceased gave any real thought or attention to this explanation in the financial services agreements. They are very dense, and in the absence of evidence to the contrary it is improbable that she did so.
[28] There is no meaningful distinction between the signature cards in the present case and in Gastle. I conclude that the signature cards in the present case should likewise be found insufficient to rebut the presumption of resulting trust.
[29] In Calmusky, the deceased also signed similar signature cards. There was also evidence from the bank employee who had made the accounts joint, although it was largely based on the bank employee testifying as to what she typically would have told an elderly person in such circumstances. Lococo J. held at paragraph 46 that:
Nevertheless, I am satisfied that the explanations [the bank employee] gave to [the deceased] were sufficient to ensure that [the deceased] understood that [the son on the joint accounts] Gary would receive the RIF funds upon [the deceased's] death. However, I agree with [the son not on the joint accounts] Randy that the explanation the bank employees provided, together with the contents of the bank documents, were not sufficient to support the conclusion that [the deceased] intended Gary to have beneficial ownership of those funds for his own use, as opposed to the right to deal with the funds for the benefit of the estate beneficiaries.
[30] I consider that the same conclusion applies here. The signature cards indicate that the Disputed Accounts were to have survivorship, but this does not establish that the Deceased intended for Pamela to beneficially receive the Disputed Accounts, as opposed to having the right to deal with them for the benefit of the Deceased's estate beneficiaries. In the present case, the Applicant submits, and I agree, it is even less clear what was actually explained to the Deceased regarding the meaning of survivorship, such that Pamela is on a worse footing than her counterpart in Calmusky.
[31] In Turner, a mother added her daughter Wanita as joint account holder. The bank form had two tick boxes following the words "If the account is a joint account, we agree that the right of survivorship." The form then specified "If no box is checked, this option applies and on the death of one of the joint tenants that the account balance automatically becomes the property of the surviving joint tenant or tenants." Wanita argued that the wording of that box was consistent with her mother having had an intention to gift the funds to her. She argued the wording was concise and would have been easily understood by her mother. The Court found at paragraphs 29-31 that the wording in the document was neutral and did not provide evidence that the mother Mildred gave much or any thought to the tick box. Wanita failed to rebut the presumption, and the Court determined in essence that a signature card indicating survivorship is not enough. In addition, Turner indicates that some amount of further explanation on the bank documents will not change that. A similar conclusion applies to the dense financial services agreements which Pamela points to in this case. While the financial services agreement contains further explanation as to the meaning of "survivorship", there is no evidence that the Deceased gave any real thought or attention to this explanation in the financial services agreement. As previously observed, they are very dense, and in the absence of evidence to the contrary it is improbable that she did so.
[32] In Kolic, the bank forms stated there was no right of survivorship unless a box was ticked, and that box was ticked. The bank employee who set up the joint account and witnessed the signatures on the card stated it was his practice to explain the effect of a joint account and the fact it could have a right of survivorship if desired, and the meaning of the right of survivorship. Again, this was not enough to rebut the presumption: Kolic, at paragraph 56.
[33] The Applicant submits, and I agree, that the key conclusion to be drawn from these cases is that a party seeking to rebut the presumption of resulting trust cannot rely on checking off a box, or other language in banking documents explaining survivorship. There must be more evidence than this, to establish that the individual creating the joint account truly turned their mind to gifting a beneficial interest in the account. Bank documents can speak to legal title, but they are not necessarily dispositive regarding equitable title of the accounts. In the present case, this type of further evidence just is not sufficiently present. Pamela can point to banking documents, but there is no direct evidence of what was actually discussed when the Disputed Accounts were set up.
[34] Beyond this, there is little evidence as to what the Deceased intended. The bank employee Sandra Oliviera was not present at the discussions held in the branch in this case, and could only speak in very general terms as to what she thought the practice of the TD Bank might be.
[35] Pamela herself had indicated that she did not realize that the Disputed Accounts were to go to her until she reviewed the banking documents that made them joint. The clear inference is that the Deceased never intended for the Disputed Accounts to go to Pamela beneficially.
[36] The Deceased's Will also fails to mention the Disputed Accounts going to Pamela, which is notable, as the Applicant submits, because the Deceased inserted various other commentary into her Will to explain the reasoning behind her testamentary planning.
[37] In the affidavit from the deceased's friend Linda Stredwick, Ms. Stredwick says that the Deceased told her that she intended for Pamela to receive the Dispute Accounts when the Deceased died. However, Ms. Stredwick also indicates that the Deceased asked her to witness a Will in or around 2016/2017 that was different than the Will for which a Certificate of Appointment was obtained (which Will was dated August 7, 2016).
[38] Given that there is confusion as to the extent to which the Deceased was sharing complete and accurate information with Linda Stredwick, Ms. Stredwick's affidavit evidence is uncorroborated hearsay as to verbal statements made by the Deceased, and Ms. Stredwick's testimony relates to statements made at least a year after the Disputed Accounts were made joint, I consider that little weight should be ascribed to Ms. Stredwick's account.
[39] I would also note that Pamela, when she signed the application for appointment as Estate Trustee with a Will, agreed that the accounts were estate assets. It is only later that she changed her stance and adopted a different position.
[40] Taken altogether, Pamela has not been able to put forward sufficient evidence to rebut the presumption of resulting trust. It is her onus to discharge, but she has not been able to do so. Accordingly, the Disputed Accounts should be declared to be assets of the Estate.
Issue 2: Updated Accounting
[41] This issue is relatively straightforward. Pamela has previously provided an accounting as to the Disputed Accounts, but it is now several years old. As I have determined that the Disputed Accounts are Estate assets, then in her role as one of the Estate Trustees, Betty is entitled to up-to-date information regarding these accounts.
[42] In oral submissions, Pamela's counsel confirmed that Pamela does not dispute that this should be done.
Issue 3: How should the Deceased's ashes be dealt with?
[43] As the Estate Trustees, Betty and Pamela have a duty to appropriately deal with the Deceased's remains.
[44] It is most unfortunate that the parties have not been able to reach an agreement and act appropriately concerning this issue, and that the Deceased's ashes have still not been dealt with in accordance with the wishes expressed in her Will some five years after her demise.
[45] I appreciate that such an issue can be a lightning rod for contention in similar circumstances, and a proxy for longstanding resentments, and that it is not uncommon that families will channel their hurt and anger into issues regarding funeral arrangements. But, as I urged the parties during the oral hearing, they should temper such disputes and have regard to their mother's wishes and to their mutual affection for her. The parties have asked me to play Solomon in this dispute about their mother's ashes. I am reluctant to do so. The ashes of deceased persons are not some item of mere property. I am confident that it is within the capacity of the parties to resolve this issue as between themselves, and not let it become the focus of future resentment between them. This would be a much preferable and more sound way ahead for both of the parties.
[46] As I indicted during the oral hearing, the parties are to discuss funeral arrangements for the ashes. If they cannot agree within 90 days of the date of release of this decision, they may return to court for further direction.
Conclusion
[47] The Respondent has not successfully rebutted the presumption of resulting trust. The Disputed Accounts are Estate assets.
[48] The Respondent should provide an updated accounting as to the Disputed Accounts to the Applicant Betty.
[49] The Parties should discuss the issue of the disposition of their mother's ashes with a view to reaching an agreement, failing which they may seek further direction from the Court. It is to be hoped that this will not prove necessary.
Order
[50] The Court Orders that:
The Disputed Accounts are Estate assets and shall be treated as such;
The Respondent shall provide an updated accounting to the Applicants within 90 days;
The Parties are to discuss funeral arrangements for the ashes of the Deceased. If they cannot agree within 90 days of the date of release of this decision, they may return to court for further direction.
Costs
[51] The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Applicants may have 14 days from the release of this decision to provide their submissions, with a copy to the Respondent; the Respondent a further 14 days to respond; and the Applicants a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Applicants' initial submissions, I will consider that the parties do not wish to make any further submissions, and will decide on the basis of the material that I have received.
M. Gibson, J.
Date: October 23, 2023