What is the testator's onus on his adult child to prove that funds held jointly by the Testator with the Child were intended as a gift?
British Columbia, Canada
The following excerpt is from Kolic v Kolic, 2019 BCSC 1463 (CanLII):
The presumption, where funds are held jointly by a testator with an adult child, is there is a resulting trust in favour of the testator. The onus is on the adult child to prove the funds were intended as a gift. As Rothstein J. stated in Pecore v. Pecore, 2007 SCC 17 at para. 53: … [T]he presumption of a resulting trust means that it will fall to the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to whatever assets are left in the account to the survivor. Otherwise, the assets will be treated as part of the transferor's estate to be distributed according to the transferor's will.
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