Sibling Rivalry Revisited

The final blog for this week wraps up our theme by considering an interesting instance of the interaction between power of attorney litigation and estate litigation.

In Wolfson Estate v. Wolfson, a recent reported decision of the Ontario Superior Court of Justice, a brother and sister were engaged in litigation relating to the estate of their late mother. The mother had jointly held her investment portfolio with her daughter. After the mother became increasingly physically and mentally frail after a stroke, the sister and brother had a falling out, the result being that the sister signed off of the joint account in place of her brother.

By will and by agreement, the mother and daughter had agreed that the jointly held portfolio would pass in accordance with the mother’s Will. However, on the mother’s death, the son, as new joint owner of the portfolio, took the position that the asset had passed to him by right of survivorship and, as he was not a party to the agreement, he was not to be bound to treat the jointly held asset as an estate asset. Moreover, he argued that the mother was upset with her daughter and that, rather than change her will, she sought to effect a change in her testamentary disposition by effecting a joint transfer to her son.

The Court considered whether summary judgment should be granted in favour of the sister’s position that the brother was bound by the agreement with the mother such that the joint account was impressed with a resulting trust for the benefit of the estate.

The daughter argued that there was no evidence to corroborate the brother’s position that mother intended him to receive the account upon the death of the mother. In addition, it was admitted by the son that he alone, without the mother, attended at the financial institution to effect the change in ownership of the joint account.

While the Court did not grant summary judgment (the Judge held that there was a triable issue respecting the mother’s capacity), the facts of the case highlight the necessity (both practical and statutory) for corroborative evidence when there is a credibility dispute between siblings and the key witness has passed away.

Have a great weekend, David