COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Cooke v. Miller (Estate),

 

2005 BCCA 263

Date: 20050510


Docket: CA031711

Between:

Stanley Robert Cooke, Elizabeth Louise Rose, William Arthur Cooke, Brian David Cooke and Brenda Donna Spani

Appellants

(Plaintiffs)

And

Barbara Ann Miller
Executrix of the Estate of William Henry Cooke

Respondent

(Defendant)

 


 

Before:

The Honourable Mr. Justice Hall

The Honourable Madam Justice Saunders

The Honourable Mr. Justice Lowry

 

P.J. Dadson

Counsel for the Appellants

B.R. Findlay

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

January 20, 2005

Place and Date of Judgment:

Vancouver, British Columbia

May 10, 2005

 

Written Reasons by:

The Honourable Madam Justice Saunders

Concurred in by:

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Lowry


Reasons for Judgment of the Honourable Madam Justice Saunders:

[1]                When he died in April 2002, Mr. Cooke held two accounts jointly with his daughter the respondent Ms. Miller.  By his last will, he apportioned his estate equally among his six children (less an accounting for a debt owing by one son).  His estate had a net value of less than $4,000. The joint accounts held funds in excess of $80,000.

[2]                The appellants are the five children who were not joint tenants.  They contend they are entitled to share in the proceeds from the joint accounts on the basis that their father Mr. Cooke, in entering into the joint accounts, did not intend an inter vivos gift, and that therefore the right of survivorship operated as a testamentary disposition.

[3]                The action was tried by summary trial pursuant to Rule 18A before Madam Justice Boyd.  She dismissed the action, explaining in her reasons for judgment (no neutral citation) that she found there was an inter vivos gift from Mr. Cooke to Ms. Miller.

[4]                On appeal, the appellants say that the learned trial judge erred in finding there was an inter vivos gift, in applying the burden of proof, and in failing to find that the transfer of the funds in the joint accounts to Ms. Miller through the device of the right of survivorship was a testamentary disposition.

[5]                The circumstances by which the funds came to be in the two joint accounts are described in the reasons for judgment of the learned trial judge.  She found that Mr. Cooke was an independent man who lived on his own and managed his own affairs until the date of his death.  Prior to his retirement in the early 1990s, he was a tugboat and ferry captain.  After his retirement, he moved to Sandspit in the Queen Charlotte Islands to reside on property he had purchased.  From Sandspit he travelled once a year to stay with a friend in Maple Ridge.  The trial judge found that Mr. Cooke did not have much contact with his children, except Ms. Miller with whom he maintained a close relationship.

[6]                In October 1994, Mr. Cooke converted his bank account into a joint account with Ms. Miller.  Personal cheques were issued to her on the account and she received regular monthly statements.  She, however, did not make any transactions on the account during her father's lifetime.

[7]                In February 1995, Mr. Cooke transferred the real property into joint tenancy with Ms. Miller.

[8]                In 1998, Mr. Cooke instructed a solicitor to prepare a will in the terms outlined above.  The solicitor deposed that he understood that Mr. Cooke's assets consisted of the real property in Sandspit, owned in joint tenancy with Ms. Miller, and the joint bank account.  He further deposed as to his invariable practice, which was to discuss with the client why he or she has registered the child as a joint tenant, question whether it was intended as a gift or mere convenience, and explain the disadvantage of a joint tenancy, being that the child would immediately gain an interest in the properties.  He deposed:

. . . in this particular case, it was clear to me that Mr. Cooke was not doing this as a mere convenience, but rather intended a gift to his daughter.

[9]                Mr. Cooke executed the will drawn by the solicitor.

[10]            In 2001, Mr. Cooke was diagnosed with cancer and moved from Sandspit to the Lower Mainland.  Ms. Miller and her father discussed the Sandspit property and agreed it should be sold.  In March 2002, the property was sold and the proceeds deposited to a second joint account in their name.  Mr. Cooke died a month later.

[11]            I turn now to the issues raised on appeal.  In considering the issues, this Court must bear in mind the deference due the finder of fact and the standard of review permitted to an appellate court as described in numerous cases from Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802 to Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.

[12]            The first issue above addresses the finding of the trial judge that Mr. Cooke intended an inter vivos gift.  The appellants contend that the trial judge erred in concluding, as a matter of fact, that Mr. Cooke intended to make an inter vivos gift.  They say that the evidence referred to by the trial judge — being that neither joint account was established as a matter of convenience in anticipation of infirmity, that Ms. Miller had cheques and statements for the accounts and the right to utilize the accounts, that he put his real property beyond his own unilateral control and required her consent to deal with the property, that these steps were taken before he saw the solicitor, and that he confirmed to the solicitor his understanding that his entire interest would pass to her on death — was insufficient to establish Mr. Cooke's intention to make an immediate gift.  They say that apart from the evidence of the solicitor, the evidence is consistent with the establishment of a trust in Mr. Cooke's favour.  As to the evidence of the solicitor, they say the trial judge erred in relying upon it both because that evidence did not include statements made by Mr. Cooke, and because the evidence of Mr. Cooke's statement of intentions was speculation or opinion based on his practice.  They invoke Re Mailman, [1941] S.C.R. 368 and Niles v. Lake, [1947] S.C.R. 291 in support of their proposition that the creation of joint accounts created a trust in Mr. Cooke's favour of the interest held by Ms. Miller.

[13]            It is true that some of the aspects referred to by the trial judge are consistent with transfer of only the legal interest to Ms. Miller, and not the beneficial interest.  The question, given that this ground of appeal is directed to the finding of fact of Mr. Cooke's intention, is whether the evidence is capable of supporting the conclusion of the trial judge.  If so, deference is owed the trial judge and we may not interfere with the trial result on this basis.

[14]            An assessment of this finding of fact requires consideration of all the evidence adduced, including the evidence of the party external to this dispute, the solicitor.  The solicitor's affidavit does not contain phrases attributed to Mr. Cooke.  However, it does contain a description of the solicitor's careful practice, which includes advising clients of the immediate interest in property a volunteer acquires upon the creation of a joint tenancy.  The affidavit also contains an averment of the instructions the solicitor took from Mr. Cooke to the effect that he intended a gift to Ms. Miller.  That affidavit evidence of subsequent conduct can be used against Mr. Cooke to establish that he intended to make a gift to Ms. Miller immediately:  Shephard v. Cartwright, [1955] A.C. 431 (H.L.).  The solicitor's evidence, along with the evidence of Mr. Cooke's regular contact with Ms. Miller and his lack of contact with all but one of the appellants (including unhappy past dealings with one son) supports the evidence of Ms. Miller that her father told her "he was giving me those assets".  As a body of evidence, it is sufficient, in my view, to support the finding of fact that Mr. Cooke intended an inter vivos gift.  The circumstances of this case are distinguishable, therefore, from those in Re Mailman and Niles v. Lake, wherein the gift was sought to be established on the primary basis of a bank's standard form for the creation of a joint account, and without evidence of the donor's wishes as related to others.  It follows that I would not accede to this ground of appeal.

[15]            In their second ground of appeal, the appellants contend that the trial judge erred in relying upon a presumption of advancement in finding that the transfer of assets into joint tenancies was a gift to Ms. Miller.  They argue that the trial judge's use of the presumption of advancement had the effect of wrongly putting the onus upon them to disprove that Mr. Cooke intended to make a gift, and that the presumption of advancement has evolved to reflect present day social realities, referring to Rathwell v. Rathwell, [1978] 2 S.C.R. 436, 83 D.L.R. (3d) 289 (S.C.C.); McLear v. McLear (2000), 33 E.T.R. (2d) 272 (Ont. Sup. Ct. J.); Simpson v. Ziprick (1995), 8 E.T.R. (2d) (B.C.C.A.).  In any case, they contend that even with a presumption of advancement, Ms. Miller must reimburse the estate because the gift represents a disproportionate advance: Miller v. Miller (1910), 8 E.L.R. 161 (Ch.).

[16]            This ground of appeal concerns these portions of the reasons for judgment of the trial judge:

[22]      While recent British Columbia cases do indeed continue to support the application of the presumption of advancement in this province, (Oliver Estate v. Walker; Pasco v. Pasco; Clarke v. Hambly), it is clear that the principle - that is, the presumption of advancement - continues to be the subject of critical commentary by the courts as to whether or not in present social conditions this presumption ought to remain applicable.  I am referring, in particular, to the comments made by Justice Dickson in Rathwell v. Rathwell, reported at [1978] 83 DLR (3d) 289, and the judgment of Justice Lambert of our own Court of Appeal, albeit by way of obiter, in Simpson v. Ziprick (CA019578, May 1, 1995).

[23]      On a review of these authorities, I am satisfied that even if there is some remaining question as to the existence of such a presumption, it is of little relevance to the case at bar.  Simply put, I am satisfied that based on the evidence before me, the plaintiffs have failed to prove on a balance of probabilities that it was not the deceased's intention to transfer both a legal interest and beneficial interest in the funds to the defendant.  To the contrary, I am satisfied that the evidence at bar amply demonstrates that the deceased did, indeed, intend an immediate inter vivos gift to his daughter.  I rely on several strands of evidence.

. . .

[28]      In my view, on all of the evidence, the plaintiffs have failed to establish, on a balance of probabilities, the grounds for any findings to support an order that these properties were held on a resulting trust for the other beneficiaries of the estate.  I find that none of the usual hallmarks for a resulting trust exist here.

[17]            I do not consider that the reasons for judgment of the trial judge bear the meaning contended for by the appellants.  Fairly read, they convey the trial judge's conclusion in paras. 22 and 23 that, apart from any consideration of a presumption of advancement, the evidence before her established Mr. Cooke's intention to make an inter vivos gift.  While that conclusion accords with the result that would flow from application of the presumption, it appears to me to be independent of the presumption of advancement, and sufficient reason to dismiss the action.

[18]            Nor does para. 28 and the statement "the plaintiffs have failed to establish" alter that conclusion.  While read alone it suggests the meaning attributed by the appellants, the reasons for judgment as a whole, particularly paras. 22 and 23, demonstrate that the judge reasoned from the evidence to a positive conclusion on the intention of Mr. Cooke.  In light of those paragraphs, para. 28 appears to address the evidentiary burden that fell upon the appellants in the face of the case presented by Ms. Miller.

[19]            In any case, the notion of presumption of advancement is at most an evidentiary tool.  It is an exception, in certain situations, to a presumption of resulting trust.  Both presumptions are capable of rebuttal, and their application is in all cases sensitive to the circumstances of the case, see for example Plamondon v. Czaban (2004), 348 A.R. 103 (C.A.), 2004 ABCA 161.  Here the trial judge clearly found that the evidence did not support a resulting trust.  That is a conclusion with which I would not interfere.

[20]            It follows that I would not interfere with the order of the trial judge on this ground.

[21]            In their third ground of appeal, the appellants submit that the trial judge erred in not finding that Mr. Cooke intended a testamentary disposition because he intended Ms. Miller to take upon his death.  The legislature, they say, has directed, through the Wills Act, R.S.B.C. 1996, c. 489, that dispositions effective upon death must meet the safeguarding standards of that Act, for example, as to the requirement for two witnesses.  The arrangements in this case, they say, represent an impermissible avoidance of the Act.

[22]            Again I would not accede to this submission.  The trial judge found that Mr. Cooke intended an inter vivos gift, that is, that there was no resulting trust and the estate created was truly a joint tenancy in the sense of having a unity of interest.  The effect of this conclusion is to preclude a testamentary disposition.  For example, R.E. Megarry & H.W.R. Wade, in The Law of Real Property (London: Stevens & Sons Ltd., 1996), citing the classic case upon the subject, Swift d. Neale v. Roberts (1764), 3 Burr. 1488 (K.B.), describe the right of survivorship at 404:

. . .  This right of survivorship takes precedence over any disposition made by a joint tenant’s will: jus accrescendi praefertur ultimae voluntati.  The same principle applies if a joint tenant dies intestate; a joint tenancy cannot pass under a will of intestacy.  For this reason, among others, joint tenants were said to be seised “per my et per tout," “my” apparently meaning “not in the least”: each joint tenant holds nothing by himself and yet holds the whole together with his fellows.  

[footnotes omitted]

[23]            A Canadian description of this is found in H.D. Anger & J.D. Honsberger, Canadian Law of Real Property (Toronto: Canada Law Book Company Ltd., 1959) at 171:

. . . if one dies, no person can claim his share by descent because, between such person and the surviving joint tenants, there could not be unity of title or unity of time of vesting and no one can have the right to a separate interest in any part of the property.  When one joint tenant dies, there is no gap in the seisin or possession of the survivors or any partial divesting of their interests.  The interest of the one who dies is simply extinguished and accrues to the survivors who thus have an increased share . . . on a severance of the joint tenancy.  If no severance occurs, the last survivor takes the entire estate that was originally created as a joint tenancy, whatever the estate may be. 

[24]            Here Ms. Miller acquired her indivisible interest in the property complete with the right of survivorship at the time the assets of Mr. Cooke were placed in joint tenancy.  For the reasons explained in these text books, when Mr. Cooke died, his interest was extinguished and Ms.  Miller took the entire assets. 

[25]            For these reasons I would dismiss the appeal.

“The Honourable Madam Justice Saunders”

I AGREE:

“The Honourable Mr. Justice Hall”

I AGREE:

“The Honourable Mr. Justice Lowry”