Challenging a Joint Account or Title After a Parent Dies in Ontario

A parent dies, and the bank account or house that you expected to be part of the estate was in joint names with one sibling. That sibling says it is now theirs. You think your parent only added them for convenience.

This is a common dispute, and the law has a starting point that helps people in your position. This article explains the test, the evidence that matters, and the practical steps.

The starting point: a presumption of resulting trust

For gratuitous transfers, the Supreme Court of Canada has said the presumption of resulting trust is the general rule. The person receiving the transfer bears the onus of showing a gift was intended. An adult child added to a parent's account or asset without payment is presumed to hold it in trust for the parent and, on death, for the estate.

The exception is minor children, where a presumption of gift applies. Financial dependency of an adult child does not trigger it, though it can be strong evidence against a resulting trust.

What evidence courts consider

The question is what the parent intended when the transfer was made. Courts can consider:

• the wording of the bank documents
• who controlled and used the funds
• whether a power of attorney was granted
• how the account was treated for tax
• later evidence, if it sheds light on the parent's intention at the time of the transfer.

There is a wrinkle with joint accounts. Survivorship rights vest when the account is opened, so the gift is made during life, and what is gifted is the survivor's interest in the balance at death. Federal guidance notes that heirs may challenge the survivor, who may need to show the deceased intended the funds as a gift.

Spouses are treated differently

If the joint owner was the parent's spouse, the analysis changes. Between spouses, property held as joint tenants is proof, without evidence to the contrary, that they intended to own it jointly, and money on deposit in both spouses' names is deemed held as joint tenants. Challenging a surviving spouse's joint holdings is therefore harder, and a lawyer can advise on what evidence might apply.

Other routes and the money at stake

A resulting trust argument is not the only path. If you were a dependant, you may apply for support from the Superior Court of Justice, and certain joint assets are deemed part of the net estate for that claim. The claimant must prove the funds belonged to the deceased, and a dependant who was the other party must prove their own contribution. The application deadline is six months after the certificate is granted, with a possible exception for undistributed property.

If the estate's value is for estate administration tax, property held in another person's name that belongs to the deceased is included, and a joint asset held on resulting trust for the estate does not escape the tax. Above $50,000, the tax is $15 for every $1,000 or part of the estate's value. Whether to include a disputed asset is something the estate trustee and a lawyer should address.

What to do next

• Gather the account opening documents; the bank sets its own documentation requirements.
• Get the parcel register for any land through OnLand.
• Collect evidence on control of the money, tax reporting and any power of attorney.
• Tell the estate trustee in writing that you are disputing the asset, and ask that distribution wait.
• Get legal advice quickly. A bank may keep paying out unless a suspensory order has been personally served on it.

Frequently asked questions