Johanson Estate, Re, (1988) 95 N.S.R.(2d) 74 (ProbCt)

• Court: Probate Court of Nova Scotia (Canada)
• Case Date: November 10, 1988
• Jurisdiction: Nova Scotia
• Citations: (1988), 95 N.S.R.(2d) 74 (ProbCt)

Johanson Estate, Re (1988), 95 N.S.R.(2d) 74 (ProbCt);

    251 A.P.R. 74

MLB headnote and full text

In The Matter of the Estate of Florence Johanson, deceased

(No. 41803)

Indexed As: Johanson Estate, Re

Nova Scotia Probate Court

Allen, Registrar of Probate

November 10, 1988.

Summary:

The testatrix's will left her estate to be divided equally between her five daughters. At the time of her death the testatrix had two bank accounts, four guaranteed investment certificates and a debenture, all of which were held jointly with one of her daughters. The testatrix also transferred her motor vehicle to the daughter shortly before her death. The daughter claimed ownership of the jointly-held assets on the basis of survivorship. Central Trust, one of the executors, claimed the bank accounts and securities were held by the daughter in trust for the estate; no beneficial interest had passed to the daughter. Central also challenged the legality of the motor vehicle transfer.

The Registrar of the Nova Scotia Probate Court held that the bank accounts and securities were estate assets; there was no corroboration of the daughter's claim as required by s. 42 of the Evidence Act and no evidence, other than that of the daughter, of any intention that the daughter was to have a beneficial interest in the assets. The Registrar held that the assets were held upon a resulting trust for the benefit of the estate.

Banks and Banking - Topic 2733

Joint accounts - Title to account - Resulting trust in favour of original owner of funds - The testatrix's will left her estate to be divided equally between her five daughters - At the time of her death the testatrix had two bank accounts, four guaranteed investment certificates and a debenture, all of which were held jointly with one of her daughters - The testatrix also transferred her motor vehicle to the daughter shortly before her death - The daughter claimed ownership of the jointly-held assets on the basis of survivorship - Central Trust, one of the executors, claimed the bank accounts and securities were held by the daughter in trust for the estate; no beneficial interest had passed to the daughter - The Registrar of the Nova Scotia Probate Court held that the bank accounts and securities were estate assets; there was no corroboration of the daughter's claim as required by s. 42 of the Evidence Act and no evidence, other than that of the daughter, of any intention that the daughter was to have a beneficial interest in the assets - The Registrar held that the assets were held upon a resulting trust for the benefit of the estate.

Executors and Administrators - Topic 5701

Action against an estate - Evidence - Requirement of corroboration - [See Banks and Banking - Topic 2733 above].

Gifts - Topic 724

Gifts inter vivos - Transfers in joint tenancy - Transfers to joint bank accounts - [See Banks and Banking - Topic 2733 above].

Trusts - Topic 1906

Resulting trust - Gifts - [See Banks and Banking - Topic 2733 above].

Cases Noticed:

Re Fenton Estate (1977), 26 N.S.R.(2d) 662; 40 A.P.R. 662, refd to. [para. 6].

Re Reid (1921), 50 O.L.R. 595 (C.A.), refd to. [para. 8].

Edwards v. Bradley, [1956] O.R. 225; 2 D.L.R.(2d) 673 (C.A.), refd to. [para. 9].

Statutes Noticed:

Evidence Act, R.S.N.S. 1967, c. 94, sect. 42 [para. 28].

Counsel:

B.W. Downie, for the applicant;

K. Oldfield, for the respondent.

This case was heard on September 23 and 30, 1988, at Halifax, Nova Scotia, before Allen, Registrar of Probate, of the Nova Scotia Probate Court, who delivered the following judgment on November 10, 1988.