Resulting TrustsJoint Bank AccountsSurvivorship ClaimsBeneficial OwnershipGratuitous Transfers
Joint ownership does not always mean what it appears to. We uncover the true beneficial interests.
Joint Asset Practice
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Joint Asset Disputes
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Key SCC Decisions Applied
Quick Answer
What is a resulting trust in the context of joint assets?
A resulting trust arises when property is held by one party for the benefit of another. In the joint asset context, a resulting trust means that despite the legal joint ownership, the beneficial interest in the property belongs to the estate of the deceased, not to the surviving joint owner.
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JOINT ASSET DISPUTES
Resulting Trusts and Joint Property Claims
When property is placed into joint ownership, a critical question arises upon the death of one owner: does the surviving joint owner take the property beneficially by right of survivorship, or does a resulting trust arise in favour of the deceased's estate? The answer depends on the intention of the transferor at the time of the transfer, and the legal framework was significantly clarified by the Supreme Court of Canada in Pecore v. Pecore [2007] 1 SCR 795.
In Pecore, the Supreme Court held that when a parent transfers property into joint ownership with an adult child, a presumption of resulting trust applies. The onus is on the adult child to rebut this presumption by demonstrating that the parent intended to make a gift of the beneficial interest, not merely to add the child's name for convenience or estate planning purposes. The court examines the transferor's contemporaneous statements and actions, the relationship between the parties, and the surrounding circumstances.
JOINT BANK ACCOUNTS
Disputes Over Joint Bank Accounts
Joint bank accounts are among the most commonly disputed assets in estate litigation. The companion decision to Pecore, Madsen Estate v. Saylor [2007] 1 SCR 838, addressed the distinction between the right of survivorship during the account holder's lifetime and the beneficial ownership of the funds after death. The court confirmed that even where a right of survivorship is established at law, the beneficial interest in the funds may still belong to the estate under a resulting trust analysis.
In Ontario, the question of whether funds in a joint bank account pass to the surviving account holder or fall into the estate is determined by examining the deceased's intention. Evidence considered includes the banking documents, the deceased's statements to family and advisors, the pattern of contributions to the account, the deceased's testamentary documents, and the overall relationship between the account holders. Where the account was opened primarily for convenience to allow the joint holder to pay the deceased's bills, a resulting trust in favour of the estate is more likely to be found.
REAL PROPERTY
Joint Tenancy in Real Estate Disputes
Joint tenancy in real property raises additional complexities. When a parent adds an adult child to the title of their home as a joint tenant, the presumption of resulting trust from Pecore applies. The estate may argue that the property should be treated as an estate asset rather than passing to the surviving joint tenant by right of survivorship. The resolution depends on evidence of the parent's actual intention at the time of the transfer.
Important considerations include whether the parent continued to live in the property and pay all expenses, whether the parent retained effective control over the property, whether the transfer was documented through a deed of gift with independent legal advice, and whether the parent's will addressed the property. Under the Land Titles Act and the Registry Act, the legal title on the register is not determinative of beneficial ownership. Our lawyers analyse all available evidence to construct or defend resulting trust claims involving jointly held real property.
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What is a resulting trust in the context of joint assets?
A resulting trust arises when property is held by one party for the benefit of another. In the joint asset context, a resulting trust means that despite the legal joint ownership, the beneficial interest in the property belongs to the estate of the deceased, not to the surviving joint owner.
What is the Pecore v. Pecore decision?
Pecore v. Pecore [2007] 1 SCR 795 is the leading Supreme Court of Canada decision on gratuitous transfers from parents to adult children. It established that a presumption of resulting trust applies when a parent places property in joint ownership with an adult child, placing the onus on the child to prove a gift was intended.
Does a joint bank account automatically pass to the survivor?
Not necessarily. While the right of survivorship at law may transfer the legal title to the surviving account holder, the beneficial interest may belong to the estate under a resulting trust analysis. The court examines the deceased's intention at the time the account was made joint.
What evidence is relevant to joint asset disputes?
Relevant evidence includes the banking or property documents, the deceased's statements to family members and advisors, the pattern of contributions, the deceased's will and estate planning documents, the relationship between the parties, and whether independent legal advice was obtained at the time of the transfer.
Can a joint tenancy in real property be challenged after death?
Yes. The estate may bring a resulting trust claim to recover property held in joint tenancy where the evidence demonstrates that the deceased did not intend to make a gift of the beneficial interest. The legal title on the land registry is not determinative of beneficial ownership.
What is the difference between a gift and a resulting trust?
A gift involves the voluntary transfer of both legal and beneficial ownership. A resulting trust arises where legal title is transferred but the beneficial interest is retained by the transferor. In joint asset disputes, the court must determine whether the transfer was a true gift or merely a change in legal title for convenience.
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If you contact us
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This website is not an emergency service. Enquiries sent through a form here are read during
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Using this website, submitting a form, sending an email or speaking to us on the telephone does
not make us your lawyers. That relationship arises only when the firm has
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retainer has been signed.
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Do not send confidential or sensitive information through this website or by email until we have
confirmed in writing that we can act for you. Information sent before that point is
not treated as confidential and may prevent us from acting for you, or for
someone else, in a connected matter.
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We aim to reply within one business day. Contacting us does not guarantee a reply within any
particular period, does not oblige the firm to act, and does not stop, extend or satisfy
any limitation period, filing date or court deadline.
Our telephone line
Our line is answered 24 hours a day, every day of the year. Outside office hours calls are taken
by our intake service, who record your details and pass them to the firm. A lawyer responds during
the next business day, or sooner if the matter is urgent. Answering the telephone is not the same
as giving legal advice, and no relationship arises from that call.
Who we are and how we are regulated
Law Society of Ontario
Lexaltico LLP is regulated by the Law Society of Ontario under the
Law Society Act, R.S.O. 1990, c. L.8. All lawyers practising in
Ontario through the firm are members in good standing.
Law Society of Alberta
Alberta matters are handled by lawyers licensed with, and in good standing with, the
Law Society of Alberta. A lawyer licensed in Ontario is not thereby licensed in
Alberta, and the reverse is also true.
Immigration regulation
Immigration consulting is provided by Regulated Canadian Immigration Consultants
in good standing with the College of Immigration and Citizenship Consultants under the
College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29,
s. 292.
Lawyers, paralegals and consultants
Not everyone at the firm is a lawyer.
Licensed paralegals in Ontario may act only within the scope the Law Society
permits, which does not include most family, estate or criminal matters.
Immigration consultants are regulated by the College, not by a law society,
and are not lawyers.
Law clerks and managers support files but do not give legal advice.
Each page and biography states which applies. Ask at the outset who will handle your matter and
under which licence.
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We serve clients in thirteen languages. Every page of this website is written and published in
English. Where anything is provided in another language, the English
version governs in the event of a difference. If you need an interpreter, tell us when
you book and we will arrange one.
Fees
The initial assessment
The complimentary 15 minute initial assessment is a brief introductory
conversation. It does not include a review of your documents and does not constitute
legal advice.
The firm charges a fee for substantive consultations, including in civil litigation,
criminal defence and immigration matters. The firm may waive that fee at its discretion.
Any fee is disclosed in advance and credited in full toward your account if you retain the
firm.
Referral fees
Where we refer a matter to another firm, including through LexKonnect, we comply with Rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct. Any referral fee is set out in the Law Society’s standard referral agreement, signed by you before the referral proceeds, and no fee is payable to us unless and until the receiving firm has been paid for its work. You are never obliged to accept a referral and are free to retain any firm you choose. No referral arrangement affects the independent professional judgment of any lawyer at this firm.
What is published on this site
Calculators and estimators
They produce estimates from what you type and cannot know the rest. They do not
account for the terms of your contract, statutory exceptions, or the discretion a court will
apply. Do not make a decision on a number produced by a calculator.
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Any outcome described happened on its own facts, before its own decision maker,
under the law as it stood at the time. Past results do not predict or guarantee the result of any
other case.
Reviews and testimonials
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describes one person’s experience of one matter. They are not a promise, a
prediction or a guarantee about any other matter.
Links to other websites
This site links to regulators, courts, government sources, professional associations and social
platforms, all operated by others. We do not control them, we are not responsible for
their content or accuracy, and a link is not an endorsement.
Other notices
Limitation periods
Failure to start a proceeding within the applicable limitation period may permanently bar
your claim. In Ontario the general period is two years from discovery
under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
Shorter periods apply to many claims. Seek advice promptly. Nothing on this website extends a
limitation period.
Accessibility
We aim to meet the Accessibility for Ontarians with Disabilities Act
and WCAG 2.1 Level AA. If any part of this site prevents you from reaching us, telephone
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