MacInnis Estate v. MacDonald, (1994) 138 N.S.R.(2d) 321 (SC)

• Judge: MacAdam, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: September 30, 1994
• Jurisdiction: Nova Scotia
• Citations: (1994), 138 N.S.R.(2d) 321 (SC)

MacInnis Estate v. MacDonald (1994), 138 N.S.R.(2d) 321 (SC);

 394 A.P.R. 321

MLB headnote and full text

The Estate of the Late Alexander J. MacInnis, represented by its Administrators, Brian MacInnis and Alexander MacInnis (plaintiffs) v. Marlene MacDonald and Donald B. MacDonald (defendants)

(S.P.H. 01086)

Indexed As: MacInnis Estate v. MacDonald

Nova Scotia Supreme Court

MacAdam, J.

September 30, 1994.

Summary:

A year and a half before he died a father opened a joint account with his oldest daughter without informing the other children. At the time of his death the account held $73,000. The daughter claimed the balance of the account under survivorship. The other children claimed that the money was held under a resulting trust for the benefit of the estate.

The court held that there was an inter vivos gift in favour of the daughter upon the creation of the joint accounts and the trans­fer of the funds. The court determined en­titlement to other property.

Banks and Banking - Topic 2728

Bank accounts - Joint accounts - Pre­sumption of joint tenancy - A year and a half before he died a father opened a joint account with his oldest daughter without informing the other children - After the father's death, the daughter claimed the balance of the account under survivorship - The other children claimed that the money was held under a resulting trust for the benefit of the estate - The Nova Scotia Supreme Court held that there was cor­roborating evidence to support the oldest daughter's claim that by creating the accounts, the father made an inter vivos gift of the balances in the accounts at the date of his death - The court held that the presumption of advancement applied to reject the ordinary rule of resulting trust - See paragraphs 17 to 102.

Gifts - Topic 554

Gifts inter vivos - Presumption of gift - Advancement - Transfers from parent to children - [See Banks and Banking - Topic 2728 ].

Gifts - Topic 651

Gifts inter vivos - Conditional gifts - A year and a half before he died a father opened a joint account with his oldest daughter by transferring his other accounts - The father later told the daughter that he wanted to do something nice for her, help one of his sons obtain certain land and help his grandchildren with college - The Nova Scotia Supreme Court held that there was an inter vivos gift upon the creation of the joint accounts and the transfer of the funds - The court held that there was no condition or trust created as the father's wishes were precatory in nature and did not impose a legal duty on the daughter - See paragraphs 118 to 120.

Gifts - Topic 724

Gifts inter vivos - Transfers in joint ten­ancy - Transfers to joint bank accounts - [See Banks and Banking - Topic 2728 ].

Gifts - Topic 1643

Gifts mortis causa - Validity - Particular types of property - Bank accounts - A year and a half before he died a father opened a joint account with his oldest daughter by transferring his other accounts - The father did not inform the other children of the joint account - After the father's death, the daughter claimed the balance of the account under survivorship - The Nova Scotia Supreme Court opined that the elements of a donatio mortis causa were present but it preferred to base the decision on a valid gift inter vivos - See paragraphs 107 to 110.

Cases Noticed:

Fenton Estate, Re (1977), 26 N.S.R.(2d) 662; 40 A.P.R. 662 (T.D.), refd to. [para. 17].

Edwards v. Bradley, [1957] S.C.R. 599, refd to. [para. 18].

Adshade v. Adshade (1984), 67 N.S.R.(2d) 83; 155 A.P.R. 83 (T.D.), refd to. [para. 19].

Clemens v. Clemens Estate et al. (1956), 1 D.L.R.(2d) 625 (S.C.C.), refd to. [para. 19].

Dyer v. Dyer (1788), 2 White & Tud. L.C. 9th Ed. 749, refd to. [para. 27].

Whitford v. Whitford (1941), 16 M.P.R. 131 (N.S.S.C. in banco), refd to. [para. 33].

Jeans v. Cooke (1857), 27 Beav. 513 (Rolls Ct. Master), refd to. [para. 35].

Dagle v. Dagle Estate et al. (1990), 81 Nfld. & P.E.I.R. 245; 255 A.P.R. 245; 38 E.T.R. 164 (P.E.I.C.A.), refd to. [para. 36].

Rathwell v. Rathwell, [1978] 2 S.C.R. 436; 19 N.R. 91; 83 D.L.R.(3d) 289; [1978] 2 W.W.R. 101; 1 E.T.R. 307; 1 R.F.L.(2d) 1, refd to. [para. 37].

McKenna Estate, Re (1994), 134 N.S.R.(2d) 218; 383 A.P.R. 218 (Probate Ct.), refd to. [para. 41].

Johnson v. Nova Scotia Trust Co. et al. (1974), 6 N.S.R.(2d) 88 (C.A.), refd to. [para. 85].

Black v. McKeen (George) & Co. (1921), 62 S.C.R. 290; 68 D.L.R. 34, refd to. [para. 85].

Ward v. Ward Estate (1985), 70 N.S.R.(2d) 219; 166 A.P.R. 219 (Co. Ct.), refd to. [para. 86].

Sands Estate v. Sonnwald (1986), 22 E.T.R. 282 (Ont. H.C.), refd to. [para. 87].

Radford v. MacDonald (1891), 18 O.A.R. 167 (C.A.), refd to. [para. 87].

Johanson Estate, Re (1988), 95 N.S.R.(2d) 74; 251 A.P.R. 74 (Prob. Ct.), refd to. [para. 92].

Niles v. Lake (1947), 2 D.L.R. 248 (S.C.C.), refd to. [para. 96].

McCarthy, Re (1970), 16 D.L.R.(3d) 72 (N.S. Prob. Ct.), refd to. [para. 98].

Shaw v. MacKenzie Estate (1994), 131 N.S.R.(2d) 118; 371 A.P.R. 118 (S.C.), refd to. [para. 100].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 63 [para. 125].

Evidence Act, R.S.N.S. 1989, c. 154, sect. 45 [para. 84].

Wills Act, R.S.N.S. 1989, c. 505, sect. 6 [para. 103].

Authors and Works Noticed:

Halsbury's Laws of England (3rd Ed. 1957), p. 387, s. 736 [para. 28].

Underhill, Arthur, The Law of Trusts and Trustees (12th Ed. 1970), p. 38 [para. 119].

Waters, D.W.M., The Law of Trusts in Canada (2nd Ed. 1984), p. 325 [para. 38].

Counsel:

Daniel J. MacIsaac, for the plaintiffs;

Arthur J. LeBlanc, for the respondents.

This case was heard before MacAdam, J., of the Nova Scotia Supreme Court, who delivered the oral reasons on September 30, 1994, and released written reasons on Feb­ruary 3, 1995.