Marshall et al. v. Cole et al., (2008) 281 Nfld. & P.E.I.R. 30 (NLTD)

• Judge: Adams, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: November 28, 2008
• Jurisdiction: Newfoundland and Labrador
• Citations: (2008), 281 Nfld. & P.E.I.R. 30 (NLTD)

Marshall v. Cole (2008), 281 Nfld. & P.E.I.R. 30 (NLTD);

    863 A.P.R. 30

MLB headnote and full text

Temp. Cite: [2008] Nfld. & P.E.I.R. TBEd. DE.008

Mae Marshall, Myrtle Kennedy, Dorothy Skinner, Florence Baggs, Millie Spencer and Chesley Powers (plaintiffs) v. Marina Cole (first defendant) and Marina Cole as Executrix of the Estate of William Powers (second defendant)

(200801T0265; 2008 NLTD 187)

Indexed As: Marshall et al. v. Cole et al.

Newfoundland and Labrador Supreme Court

Trial Division

Adams, J.

November 28, 2008.

Summary:

Powers died on October 24, 2007, at the age of 102. In 1995 or 1996, Powers had hired his niece (Cole) to help him with chores and look after him in his home. In July 2007, Powers had added Cole to his bank account, making it a joint account. On October 22, 2007, two days before Powers' death, Cole transferred $430,000 from the joint bank account into her own bank account. The plaintiffs, Powers' siblings and sister-in-law, sought a declaration that all of the monies in Cole's account which came from the joint account with Powers were subject to a resulting trust in favour of Powers' estate and were to be included in his estate and distributed in accordance with Powers' will.

The Newfoundland and Labrador Supreme Court, Trial Division, allowed the action. The court declared that all monies that were in the joint account prior to the transfer of $430,000 by Cole into her own account belonged to Powers' estate and were to be distributed in accordance with his will.

Banks and Banking - Topic 2733

Bank accounts - Joint accounts - Title to account - Resulting trust in favour of original owner of funds - Powers died on October 24, 2007, at the age of 102 - In 1995 or 1996, Powers had hired his niece (Cole) to help him with chores and look after him in his home - In July 2007, Powers had added Cole to his bank account, making it a joint account - On October 22, 2007, two days before Powers' death, Cole transferred $430,000 from the joint account into her own bank account - The Newfoundland and Labrador Supreme Court, Trial Division, held that Cole had not rebutted the presumption of a resulting trust and the money in the joint account was held by Cole on a resulting trust in favour of Powers' estate - The bank documents did not provide convincing evidence of Powers' intention - The wording was brief and did not require Powers to focus on his actual intention for the funds - Vague references to statements made by Powers that Cole would be looked after financially were not persuasive on which to conclude that they expressed an intention on Powers' part that he was making a gift of over $400,000 to Cole - Such statements were equally consistent with his having left Cole $25,000 in his will and his gift of $15,000 to her a few days before he put her name on the joint account - Cole had also not established that the money in the joint account was a gift mortis causa - At the time of putting Cole's name on his account, Powers, while 102 years old and aware that he would not live forever, was not contemplating death - To the contrary, he was anticipating living but foresaw that he might need some assistance with his banking.

Gifts - Topic 527

Gifts inter vivos - Presumption against gift - Resulting trust - Rebuttal of presumption - [See Banks and Banking - Topic 2733 ].

Gifts - Topic 724

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

Gifts - Topic 1523

Gifts mortis causa - Elements of valid transfer - Contemplation of death - [See Banks and Banking - Topic 2733 ].

Trusts - Topic 2044

Resulting trusts - Voluntary property transfers - Presumption of resulting trust - [See Banks and Banking - Topic 2733 ].

Trusts - Topic 2144

Resulting trusts - Intention - Evidence - [See Banks and Banking - Topic 2733 ].

Cases Noticed:

Whalen v. Cooper (1983), 45 Nfld. & P.E.I.R. 181; 132 A.P.R. 181 (Nfld. T.D.), refd to. [para. 20].

Niles v. Lake, [1947] 2 D.L.R. 248 (S.C.C.), refd to. [para. 20].

Pecore v. Pecore (2007), 361 N.R. 1; 224 O.A.C. 330; 2007 SCC 17, refd to. [para. 22].

Power Estate, Re (2001), 205 Nfld. & P.E.I.R. 163; 615 A.P.R. 163 (Nfld. T.D.), refd to. [para. 24].

Murphy Estate, Re (1998), 169 N.S.R.(2d) 284; 508 A.P.R. 284; 1998 CanLII 1312 (S.C.), refd to. [para. 25].

Saylor et al. v. Brooks, [2007] 1 S.C.R. 838; 360 N.R. 327; 2007 SCC 18, refd to. [para. 30].

Counsel:

Douglas Moores, Q.C., for the plaintiffs;

Ronald Cole, for the first defendant;

John Babb, Q.C., for the second defendant (who did not participate in the hearing).

This action was heard at St. John's, Nfld. and Lab., before Adams, J., of the Newfoundland and Labrador Supreme Court, Trial Division, who delivered the following decision on November 28, 2008.