While titling this blog article as part 620 is a bit tongue and cheek, there is some validity to that number. We have posted a number of blog articles on the presumption of resulting trust, (use the search window to find all of them) which all relate back to the 2007 decision by the Supreme Court of Canada, in Pecore v. Pecore. As Estate Lawyers we must be alive to the basic concept that the court assumes no one gets anything for free. If you place a bank account as an example in the joint names of the father and adult daughter, it is not deemed to be a gift upon the father’s death by right of survivorship, but rather it belongs to the late father’s estate. Pecore gives many numbered examples of indicators to defeat the presumption, but there was an unnumbered category. Justice Rothstein stated the following “I see no reason why courts cannot consider evidence relating to the quality of the relationship between the transferor and transferee in order to determine whether the presumption of resulting trust has been rebutted”. In other words, one could attempt to argue that the adult daughter had been selfless and provided essential care for the adult father, and that was the reason why the father added the adult daughter’s name to a joint bank account and that there was indeed an intention that upon the death of the adult father, the joint bank account would belong solely to the dutiful daughter. Estate Litigation Lawyers have these principles front and centre.
There were two Court decisions in 2025 that examined this argument. Firstly, Buffa v. Giacomelli. In that case, the mother had named the dutiful daughter as the sole beneficiary of her RRIF and TFSA and had placed her money into a joint account with the daughter. The court gave a lot of weight to the relationship, however in this author’s view, even more importantly was the fact that the mother had signed notes stating her intention to gift the proceeds of these assets to the daughter.
Conversely, we have the Psoma Estate case in which the dutiful nephew had a very close relationship with his aunt, and he had argued that the right of survivorship was a reimbursement of debts he had incurred on his Aunt’s behalf during her life, and as a measure of compensation for the help and support he had provided to his aunt throughout her life. In this case, the court felt it was not enough. Obviously, what is so clear a differentiation from Buffa v. Giacomelli is that there was nothing in writing. If one has nothing other than the close relationship, and that is all one can argue and one can cite the Pecore court case as evidence to justify that argument, however it generally is not enough. Competent Will and Estate Lawyers, ask their client’s at the time of drafting if this situation exists and is to covered in the will.
