Thu | Jan 17, 2019

Laws of Eve

Published:Monday | February 9, 2015 | 12:00 AM

Although I have written previous

articles concerning the legal treat of joint bank accounts, a recent decision of the Court of Appeal in the case of Clover Robinson v National Commercial Bank Jamaica Limited and Others [2015] JMCA Civ 3 has given new life to the issues. In fact, the ruling has provided much clearer guidance to both customers and commercial banks.

The background to the case is common in that an holder

customer of the bank, who had been the sole account holder and only contributor to the account, became ill and unable to transact business on her own. Acting on the suggestion of a member of staff at the bank, the customer added her caregiver's name to the account.

The customer died five days after adding her caregiver's name to the account, and before any transactions were done by the caregiver. After the customer died, the caregiver then tried to make withdrawals from the account - one failed attempt to withdraw $3m and one successful attempt to withdraw $500,000 - before the bank froze the account.

Based on the contract between the bank and the customer, the court found that "the monies in the account [were] available to either account holder during their joint lives or to the survivor on the death of either or any of them is ... only conclusive of their respective legal interests." This, according to the court, makes the bank liable to the account holders and protects the bank if it pays out money to one or the other account holder.

The court's review

In the usual case, the death of one account holder will mean that the

balance in the account will automatically go to the survivor. However, where the executors of the deceased account holder's estate claim that the funds belong to her estate, the court will review the matter in the following way:

• Due to the fact that the addition of someone's name to a bank account would be a personal gift (as opposed to a gift of real property), the court will start its enquiry by presuming that the money belongs to the transferor and that the transferee holds the money in trust for the transferor. (This is the presumption of resulting trust and, in this case, it means that the court presumed that the caregiver held the money in the account in trust for the customer. The presumption is rebuttable if there is evidence to the contrary.)

• Evidence to rebut the presumption of resulting trust could exist where the money was intended to be a gift from the customer to the caregiver as a result of a declared intention to make such a gift or based on the presumption of advancement. (The presumption of advancement did not arise in this case, because it relates to a situation in which the transfer is from a parent to a child or from one spouse to another.)

• Once the customer's executors laid claim to the money, the caregiver had the burden of proving that the money was intended for her benefit. That burden will not fall on the person who placed the funds in the account to prove that the funds belong to her.

• The court will also examine the circumstances surrounding the opening of the account and what transactions were made. Therefore, if there are contemporaneous documents to show what the customer's intention was at the time the account was opened, that evidence will assist the court to determine the matter. Also (although not examined in this case), it would seem that evidence that the caregiver freely undertook transactions in her own right and for her own benefit, that would have helped her to rebut the presumption of resulting trust and show that she was beneficially entitled to them.

After examining the evidence taken in the court below, and the submissions of attorneys for the executors of the customer and the caregiver, the Court of Appeal dismissed the caregiver's appeal, and found that the presumption of trust in favour of the customer had not been rebutted.

• Sherry Ann McGregor is a partner and mediator in the firm of Nunes, Scholefield, DeLeon & Co. Please send comments and questions to or