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Justice Glasgow rules on the EC$2 million joint bank account – Part II

Victor Nazim Burke – represented one of the parties in the court battle

High court judge Justice Raulston Glasgow has been called upon to give a ruling on the proceeds in a EC$2 million Joint Account in which one of the holders, British national Lionel Akins who lived on the sister isle of Carriacou had left behind.

The other name on the account Lauralee Cross was trying to lay her hands on all the money despite instructions given by the deceased that half of the money be transferred to another Joint account that he held with a close relative, Garvin Mc Quilkin.

Republic Bank was conducting an investigation when Akins died and did not transfer the funds.

Cross instituted legal action against Republic Bank claiming that she is entitled to the beneficial interest of the proceeds of the joint account which she previously held with Akins.

She argued that her entitlement to the entire balance in the account in the sum of $2,000,000.00 arises by virtue of the right of survivorship after the deceased’s death.

The ancillary claimant (Mc Quilkin) pleads that Ms. Cross is not entitled to the entire proceeds on the account since the deceased instructed the bank to transfer the sum of $995,262.27 from that account to another account prior to his death.

She contended that the bank’s failure to honour her request deprives her of the benefit of the funds in the account and claimed for loss and damages in the sum of $2,000,000 together with orders for declarations and interest, among other relief.

In response to the claim, the bank denies that the deceased established the account jointly with Cross and that the account was a personal chequing account in the deceased’s name to which he thereafter added Cross as a joint holder.

The bank argues that it had a lawful basis for freezing the account and it was bound by a legal duty of confidentiality owed to the deceased and his estate with respect to transactions conducted on the account.

Following is the Raulston Glasgow judgement on the issue:-

Discussion and Analysis
Whether upon Lionel Akins’ death, the beneficial interest in the proceeds of the joint account passed to Ms. Cross by way of survivorship

[21] Counsel for Ms. Cross, Ms. Karen Samuel, submits that in determining whether the beneficial interest in a joint account should immediately vest in the surviving joint account holder, the court must examine the surrounding circumstances. Ms. Samuel explains that the law in relation to co-ownership of real property applies equally to co-ownership of personal property.

[22] Counsel for the bank, Mrs. Bullock Jawahir, recites the principle that the rule of survivorship of a joint account is not a rigid one and may be rebutted if it can be shown that a contrary intention of one or more of the parties exists. The bank contends that it was presented with sufficient information to conclude that the deceased did not intend for all of the monies in the account to vest in Ms. Cross upon his death. Its view is that the transfer letter requesting a transfer of half of the monies in the account with Ms. Cross clearly shows a contrary intention.

[23] Counsel for Mr. Mc Qulkin, Mr. Burke, states that in determining whether the principle of jus accrescendi applies, this court must be guided by the principles distilled in Whitlock & Another v Moore. In this case, Mr. Burke says, the only instrument that appears to have been signed by Ms. Cross and the deceased is the document referred to as a “signature card”, which is silent on the issue of the right of survivorship of the account. Therefore, in the circumstances, a presumption arises that the money is held on trust for the transferor and must pass to the estate of the deceased.

[24] The account in issue was a joint account. Generally, under the common law, where there is joint ownership of the legal title in property there is a presumption that the parties intended to share that beneficial ownership of the property jointly, unless a contrary intention is shown. This principle of law was explicated in Stack v Dowden, where the House of Lords held at para. 56 that:

“Just as the starting point where there is sole legal ownership is sole beneficial ownership, the starting point where there is joint legal ownership is joint beneficial ownership. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership.” (My emphasis)

[25] In relation to joint accounts, the Australian High Court in Russell v Scott4, stated at pages 450-451 that:

“The contract between the bank and the customers constituted them joint creditors. They had, of course, no right of property in any of the moneys deposited with the bank. The relation between the bank and its customers is that of debtor and creditor. The aunt and the nephew upon opening the joint account became jointly entitled at common law to a chose in action.

The chose in action consisted in the contractual right against the bank, i.e., in a debt, but a debt fluctuating in amount as moneys might be deposited and withdrawn. At common law this chose in action passed or accrued to the survivor.”

And at pages 448-449 that:

“A person who deposits money in a bank on a joint account vests the right to the debt or the chose in action in the persons in whose names it is deposited, and it carries with it the legal right to title by survivorship (Standing v. Bowing (9) ; In re Shields; Corbould-Ellis v. Dales (10); Re Reid (11); Lindley on Partnership, 7th ed. (1905), p. 380).

The vesting of the right and title to the debt or chose in action takes effect immediately, and is not dependent upon the death of either of the persons in whose names the money has been deposited.” (My emphasis)

[26] In construing the true intention of joint account holders, the Privy Council in Whitlock & Another v Moore5, stated at paragraph 33 of the judgment that:

“Where the parties to a joint account have declared their beneficial interests in it in signed writing, it would be both extraordinary and unsatisfactory for the courts to have to resolve a dispute about their beneficial interests by an open-ended factual inquiry about their subjective intentions, or the subjective intentions of whichever of them provided the money. If the dispute is about beneficial survivorship, one of the original account holders will have died, and be unable to give direct evidence of intention. If the presumption of a resulting trust would otherwise leave the money beneficially part of the estate of the first to die, evidence of intention by the survivor will always be self-serving. The account may have been opened many years previously, and it will often be pure chance whether any independent witness of the opening of the account can assist, either with evidence of the deceased’s intention, or with a recollection of whether the deceased had the terms of the account opening form explained, before signing it. Above all, the expense and delay involved in a fact-finding inquiry of that type will far exceed that of the occasional case where the signed declaration raises a real issue of construction.” (My emphasis)

[27] In essence, the Privy Council in Whitlock is stating that in order to ascertain whether the parties to a joint account intended that the beneficial interest is to be shared, the court ought to examine the written terms of the contractual document to determine the manner in which they stated their intentions as to sharing. Where there are terms expressly stated in the document and signed by the parties, setting out the extent of their respective interests then those terms will govern how their beneficial interests are to be shared, unless the parties subsequently vary the terms of the agreement or enter into a contrary agreement..

[28] In my view, this case can be distinguished from the facts of Whitlock. In that case, there was an expressed declaration in the joint account documents that the proceeds of the account will pass to the surviving account holder by right of survivorship. However, in this case, there is no express intention or declaration as to how the beneficial interest of the joint account with Ms. Cross was to be shared.

I note that the bank filed a list of documents, but I have not been furnished with any documents which express or declare the manner of sharing in the account that is to say, whether both parties are equally entitled to the full amount or part of the moneys deposited to the account .The bank only referred to the joint account agreement between Mr. Mc Quilkin and the deceased which is not in dispute. In the absence of an express declaration of the beneficial interest in the proceeds of the account, I would advert to the general principles distilled in Russell v Scott to the effect that “[a] person who deposits money in a bank on a joint account vests the right to the debt or the chose in action in the persons in whose names it is deposited, and it carries with it the legal right to title by survivorship.”

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[29] I find that when the joint account was created with Ms. Cross and the deceased as beneficiaries, both account holders were vested with a chose in action with respect to the sums existing in the account. As Mr. Patrice stated in his evidence, both parties shared the account jointly and as such were able to withdraw monies from the account as they so desired. Therefore, the beneficial interest of the entire proceeds of the joint account or the chose in action passed upon the deceased’s death to the surviving account holder (Ms. Cross) by way of survivorship. Ms. Cross was in principle entitled to the entire proceeds of the account at the date of the deceased’s death. However, this is not the end of the matter. The facts reveal that the deceased during his lifetime instructed the bank to transfer the sum of $995,262.27 from that joint account to another account that he held with Mr. Mc Quilkin.

The validity of the transfer from the joint account

[30] This brings into sharp focus the validity of the instructions or mandate to transfer those moneys. Ms. Samuel submits that the instructions of a bank’s customer to pay are determined by notice of that customer’s death. Once the bank became aware that the deceased had died, then the bank’s authority to obey the deceased’s mandate had determined. I disagree with this submission.

On the facts, it is clear the mandate given by the deceased to transfer the monies was executed during his lifetime. Once the bank was satisfied that the deceased had properly and competently executed that mandate, the instructions were then immediately efficacious and ought to have been immediately performed. It cannot the case that the bank was relieved of its obligation to the deceased which preceded the deceased’s demise by the bank’s own inaction and failure to comply. It may have been a different issue if the facts disclosed that the bank and the deceased were still in the process of verifying his instructions. However, this is not the case in this instance and as such that issue does not trouble this court.

[31] The Bank accepts that it received a transfer request dated 9th November, 2017 which on its face was authorised by the deceased. The transfer request stated as follows:

“I Lionel Akins is of sound mind and wisdom and I hereby certify, that I have appointed and authorised my grandson Garvin Mc Quilkin to:

1.Transfer the amount of $ 995,262.27 from account number 1703399 to account number 32000049…”

[32] The bank further accepts that Mr. Mc Quilkin complied with all its required verification measures, including a notarised letter from one Mr. Theophilus Adams, Justice of the Peace. The bank also requested the services of a medical doctor who examined the deceased to satisfy the bank’s concern that the deceased possessed the requisite sound mental capacity to execute or authorise such a transfer of monies. With respect to mental capacity to carry out transactions, Kennedy LJ in Masterman-Lister v Brutton & Co (Nos 1 and 2); Masterman-Lister v Jewell and another, stated:

“It is common ground that all adults must be presumed to be competent to manage their property and affairs until the contrary is proved, and that the burden of proof rests on those asserting incapacity.”

[33] Ms. Samuel in her submissions argues that “there were red flags to mental capacity” and that these “red flags” rebutted the Masterman-Lister presumption of the deceased’s competence to manage his affairs. In Masterman-Lister. Chadwick LJ stated at paragraph 62 of the judgment that “at common law at least, the test of mental capacity is issue-specific.”

[34] There are no disputations about the bank’s finding that the deceased possessed the requisite sound mental capacity to issue the transfer request. Apart from Ms. Cross’ assertions, she has not led any evidence to rebut the presumption that the deceased possessed the requisite mental capacity to execute the transfer letter outlining his instructions. I accept the JP and Mary Noel’s evidence as witnesses to the letter of transfer along with the independent evidence of the medical doctor, Dr. Tyron Davis, that the deceased had sufficient mental capacity to authorise such a transfer.

[35] Additionally, Mr. Roger Patrice, in his evidence7, stated that he together with another bank official visited the deceased’s home to confirm his instruction to transfer the monies. Mr. Patrice states that “I visited Mr. Akins at his home together with my colleague, Shenell George. I spoke with Mr. Akins who confirmed that he knew me and confirmed his wish to transfer half [sic] by nodding his head as he could not speak.”

[36] The sum total of the foregoing leads me to conclude that the instructions contained in the transfer letter were valid and therefore the bank was and is obliged to transfer the sum of $995,262.27 to the ancillary claimant’s account with interest.

Resulting trusts
[37] Mr. Burke submits that the only document that appears to be signed by Ms. Cross at the time when she was added to the account by the deceased is a document referred to as a “signature card”. Mr. Burke submits that the “signature card” is silent on the issue of survivorship. Therefore, counsel concludes that a presumption arises that the monies in the account are held on trust for the deceased’s estate. In other words, Mr. Burke argues, the deceased retained the beneficial ownership of the proceeds of the account and as such his estate is entitled to it.

[38] It is trite law that a resulting trust is usually presumed where one person voluntarily transfers his own property in the name of himself and another. The learned authors of the Halsbury’s Laws of Enland stated that a resulting trust arises:

“Where a person purchases property in the name of another or in the name of himself and another jointly, or gratuitously transfers property to another or himself and another jointly, then, as a rule, unless there is some further indication of an intention at the time to benefit the other person or some presumption of such an intention, the property is deemed in equity to be held on a resulting trust for the purchaser or transferor.” (Underling supplied)

[39] The parties do not dispute the fact that the entire proceeds on the account were contributed by the deceased thereby raising a presumption of a resulting trust in his favour. But it is also quite well understood that a resulting trust is one of the presumptions of equity and as pointed out by the authors of Elements of Land Law –

“The presumptions of equity are… only that – presumptions, based on standardised expectations of human action and reaction. As Lord Diplock observed in Pettitt v Pettitt, the equitable presumptions as to intention are

“no more than a consensus of judicial opinion disclosed by reported cases as to the most likely inference of fact to be drawn in the absence of any evidence to the contrary… It follows that presumed intentions ultimately prevail only where there is no convincing evidence of the actual intentions of the parties. The presumption of resulting trust is therefore rebuttal, in whole or in part, by any evidence (including parol evidence) which unambiguously demonstrates that B, although providing all or part of the financing in the name of A, did not actually intend to take a beneficial interest.. Evidence of countervailing intention sufficient to oust the presumption of resulting trust can be provided in a number of ways.

Whether the presumption is rebutted in any of these ways is ultimately a matter of probability and credibility, determined with reference to the facts of each individual case.” (My emphasis)

[40] I have above concluded that the facts of this case indicate that this was a joint account to which all the relevant law including the principle of jus accrescendi applies. That finding on the facts conclusively dissolves any presumption that the deceased set up this joint account with the intention that he or his estate should retain a beneficial interest in any or all of its proceeds upon his demise.


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