Is a father's intention to maintain complete control of a deposit receipt during his lifetime to his son only after his death effective testamentary disposition?

Saskatchewan, Canada


The following excerpt is from Cooper Estate, Re, 1999 CanLII 12613 (SK QB):

In Hill v. Hill, the father purchased a deposit receipt payable to himself or his son, or to the survivor of them. The evidence established an intention on the part of the father to maintain complete control over the deposit receipt during his lifetime with the son's right to arise only upon the father's death. The court found the arrangement to constitute a testamentary disposition of the money that did not meet the testamentary requirements and therefore was ineffective.

In Larondeau, a person who stood in loco parentis to the defendant volunteer opened a joint account with the volunteer and was the only party to deposit or withdraw funds from the joint account. When opening the joint account, the sole contributor thereto stated "he was giving something to his son, and that if anything happened to him his son would have the proceeds of the account". At the time, the defendant "child" was 30 years of age and married. The court applied Hill v. Hill and concluded the gift was of a testamentary nature and therefore had to comply with The Wills Act. While it gave lip service to the presumption of advancement in favour of the child, the decision clearly indicated that very little evidence is required to rebut the presumption in circumstances where the volunteer is an adult child.

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