- Jointly held assets can pass to the survivor outside the will, so the will alone may not answer your question.
- If property was transferred for nothing, the person who received it has the onus to show a gift was intended.
- Evidence of intention has to relate to the time of the transfer, and self-serving evidence is treated with care.
- Deadlines for starting a claim are not covered here, so get legal advice promptly.
You have read the will and the numbers do not add up. A parent's main bank account is gone from the estate because a sibling was a joint owner and the bank paid the balance to them. The will says everything is shared equally, but this money never reached the estate.
This article explains how survivorship works, why the will does not control it, and how an Ontario court approaches a challenge. It is general information. Whether you have a claim depends on facts, and a lawyer should review them.
Why the money bypassed the will
Ontario lists jointly owned money and property, with a joint bank account as an example, among the assets that are distributed depending on how they are owned rather than simply under the will. The right of survivorship applies to interests held in a joint tenancy, and property that does not pass by survivorship goes to the deceased's personal representative.
The Court of Appeal for Ontario has said, in a case about a joint tenancy in land, that a will cannot by itself sever a joint tenancy and that survivorship takes precedence over a will. That is why a clause in the will dividing everything equally does not, on its own, pull a jointly held asset back into the estate.
How a challenge is framed
A challenge usually does not argue that the survivor broke the rules of survivorship. It asks whether the parent ever intended the survivor to keep the money beneficially, or only put the survivor's name on for another reason, such as help with bills.
On a transfer made for nothing, the person who received the property has the onus to show that a gift was intended. The judge starts with the applicable presumption and decides the transferor's actual intention on a balance of probabilities. The Court of Appeal has held that a trial judge erred by putting the onus on the transferee when property was jointly registered, instead of starting with the presumption of resulting trust.
Those statements come from a decision about jointly registered property. How they apply to a particular bank account, including accounts of an adult child, should be confirmed by a lawyer.
Evidence and what weakens a case
Evidence of intention that comes later must relate to the parent's intention when the transfer was made. Courts must guard against evidence that is self-serving or reflects a change in intention. That cuts both ways: a sibling's recollection that the parent wanted them to have the money, and your own recollection that it was only for convenience, will both be weighed carefully.
| Type of evidence | Why it may matter |
|---|---|
| Bank records and account-opening forms | Show when the survivor was added and how the account was set up |
| Account activity | Shows whether the money was used for the parent's needs or the survivor's |
| Messages, notes and statements to advisers | May show what the parent said at the time, which is more useful than later accounts |
| Medical and capacity records | May matter if there is a question about the parent's state of mind when the account changed |
How capacity or undue influence would be assessed depends on the facts, so if you suspect either, raise it with a lawyer early.
Estate steps, timing and cost of delay
Ontario says probate is normally required if the deceased owned real property or held assets at a financial institution. Disputes and beneficiaries who cannot consent are among the triggers for applying. The estate trustee is generally the person who deals with the estate's claim to money that may belong to it.
- Estate Administration Tax is due the day the estate certificate is issued.
- An Estate Information Return must be filed within 180 calendar days after issue, even if the estate is worth $0.
- Assets under joint ownership that automatically become the other owners' assets are left out of the estate's value for that tax.
If the money is later brought back into the estate, the value for tax purposes may change, so tell the estate trustee and the lawyer handling the estate early. The time limit for starting a court claim over a joint account depends on your facts. Limitation periods can be strict, so ask a lawyer about the deadline as soon as you suspect a problem.
What to do next
- Confirm in writing with the estate trustee which accounts were jointly held and which passed outside the will.
- Ask the bank for the account-opening documents and statements, going back to when the survivor was added if possible.
- Keep a dated timeline of when the parent's health, finances and the account changed.
- Collect messages, emails and notes made at the time rather than later reconstructions.
- Avoid confronting the survivor in ways that could harden positions before you have legal advice.
- See an Ontario estate litigation lawyer promptly, because a lawyer can confirm the limitation period and what evidence your case would need.
Frequently asked questions
Can the will override a joint account?
Not by itself. In a joint tenancy case, the Court of Appeal for Ontario said survivorship takes precedence over a will. A challenge instead focuses on whether the parent intended a gift to the survivor.
Who has to prove what in these disputes?
On a gratuitous transfer, the person who received the property has the onus to show a gift was intended, starting from the applicable presumption. The court decides the parent's actual intention on a balance of probabilities.
Does later evidence of what the parent said count?
Only if it relates to the parent's intention at the time of the transfer, and courts must guard against self-serving evidence or evidence of a changed intention.
How long do I have to start a claim?
The deadline depends on your facts. Speak to a lawyer promptly so the correct limitation period can be confirmed.
Sources
- Ontario.ca – Administering estates — ontario.ca
- Court of Appeal for Ontario – McTavish v. Reed, 2021 ONCA 885 — ontariocourts.ca
- Court of Appeal for Ontario – Hansen Estate v. Hansen, 2012 ONCA 112 — ontariocourts.ca
- Ontario.ca – Estate Administration Tax — ontario.ca
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Court of Appeal for Ontario – Holtby v. Draper, 2017 ONCA 932 — ontariocourts.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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