The case of Whitlock and another v Moree (Bahamas)  UKPC 44 considers the entitlement of a surviving joint bank account holder to the beneficial interest in the monies represented by that account where the deceased joint account holder provided all the funds for the account.
Why is the case of interest?
The case considered the existing—and somewhat conflicting—case law on whether a surviving joint bank account holder has to rebut a presumption that there exists a resulting trust in favour of the estate of the deceased funding joint bank account holder in order to establish beneficial ownership of the monies even where the account documentation states the rule of survivorship applies giving the survivor sole ownership rights.
In Whitlock and another v Moree (Bahamas) a majority of the Privy Council decided that where the documents opening the joint bank account contained terms indicating that the survivor was to be the sole owner, these terms applied to the legal and beneficial interest and no further investigation was necessary, unless there were special circumstances such as evidence of fraud or undue influence.
What were the facts?
The Bank’s standard joint account opening form stated at Clause 20:
‘JOINT TENANCY: Unless otherwise agreed in writing, all money which is now or may later be credited to the Account (including all interest) is our joint property with the right of survivorship. That means that if one of us dies, all money in the Account automatically becomes the property of the other account holder(s). In order to make this legally effective, we each assign such money to the other account holder (or the others jointly if there is more than one other account holder).’
A box on the relevant form headed ‘State Purpose of Account’ contained the words ‘to pay utilities’.
Upon Mr L’s death a question arose as to whether Mr Moree was entitled not just to the bare legal rights to the operation of the bank account but also to the funds representing the credit balance on the account of $190,000.
Issue before the court
Was Clause 20 determinative of the beneficial ownership of the joint account after Mr L’s death or did the funds form part of Mr L’s estate, by reason of the operation of the equitable doctrine of presumed resulting trust, since Mr L had provided all the money?
In both the court of first instance and the Court of Appeal the judges had proceeded on the basis that it was for Mr Moree to prove that there was no resulting trust in favour of Mr L’s estate. At first instance Mr Moree failed to discharge that evidential burden despite the terms of Clause 20. In the Court of Appeal Mr Moree succeeded and the Court accepted that the terms of Clause 20 were an important factor pointing towards the absence of any resulting trust of the funds in favour of Mr L’s estate.
Surprisingly, given this is a very common situation, the common law in a number of countries, including England, is somewhat muddled. The outcome of previous cases has been dependant upon the court analysing the facts surrounding the operation of the account, and not just the agreements signed when the account was opened (no matter how clear these appeared to be), in order to ascertain the intent of the funder.
The Privy Council thought that the common law cases in Australia, Canada, the Caribbean, England, Hong Kong, Ireland and Singapore (most of which are discussed in the judgment) were not capable of being reconciled and so it had to look at the matter afresh based upon first principles. It concluded that the common starting point used by the court of first instance and the Court of Appeal in this case was not the correct way to analyse this type of situation.
The Privy Council was split 3–2 on whether Mr Moree was entitled to rely exclusively on the terms of Clause 20 as determinative of the beneficial interest in the funds represented by the account.
The majority thought that as the previous cases on this subject in many common law jurisdictions could not be reconciled the Privy Council had to go back to basic principles to resolve the problem.
Lord Briggs, giving the leading judgment for the majority, considered that where there was a document relating to a joint bank account which set out the holders respective interests in the funds that document was to be treated as definitive.It was not permissible for a court in such a case to undertake an investigation of the subjective intentions of the parties. The court should ascertain from the proper construction of the document, whether that be an account opening form or subsequent declarations by the account holders, the extent of each joint account holders interest in the funds. The use of the doctrine of resulting trusts to “override” the expressly stated wishes of the account holders was not justified where, as in this case, there was an express provision in a document stating the survivor would have the sole interest in the funds backed up by an express assignment to that effect.
Lord Briggs went on to state the practical reasons for this conclusion at paragraph 33:
‘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.’
Lord Carnwath who gave the judgment of the minority was unimpressed with the majority reasoning. He considered joint bank accounts could not be treated in the same way as other jointly held property such as real estate where the parties would often consider the beneficial interest as a separate item. Joint bank accounts were often held as a convenient way for one person (the funding account holder) to facilitate payments. The account opening documentation often stated the surviving account holder would be solely entitled to the account simply to allow the bank to safely continue to deal with that account holder. To allow bank forms drafted to protect the bank to dictate beneficial interests (which were irrelevant to the bank) between account holders was to superimpose upon those documents a purpose for which they were never designed. Lord Carnwath thought it was absurd to think ordinary people would normally document a gift of substantial funds by signing bank account opening forms rather than in some more appropriate fashion.
The decision of the Privy Council is only persuasive authority for English courts. Nevertheless, Whitlock and another v Moree (Bahamas) is likely to be the leading case on this issue when it comes before the courts.
The analysis of the majority has the benefit of simplifying the judicial task in cases of this type. If the documents are clear there is no need to go further.
One cannot help thinking that the analysis of the minority more closely reflects what happens in practice. Many joint bank accounts with a sole funder are used as a matter of convenience eg to pay personal expenses whilst away or in cases of potential infirmity. Banks feel the need for protection in dealing with a surviving joint account holder and legislate for it in their terms and conditions—although strictly speaking this is unnecessary. They do this in a way that may inadvertently affect the account holders entitlement to the beneficial interests to the funds represented by the account. The joint account holders will often never consider what the bank forms say never mind that they had any effect on the entitlement to the funds as opposed to the ability of the survivor to continue to operate the account for its designated purpose.
It would not be surprising to see the decision of the Privy Council distinguished by an English court should the same issue come before it.
- Privy Council Appeal No 0075 of 2016
- Judges: Lady Hale; Lord Wilson; Lord Sumption; Lord Carnwath; Lord Briggs
- Date of judgment: 21 December 2017