This blog post was written by Mohena Singh, Associate at Fasken LLP.

The holiday season often brings cherished time full of gift exchanges, gatherings with family, and a break from work. Amid the festivities, it’s also an opportune moment to discuss estate and incapacity planning – a topic that, while rarely broached at the dinner table, is vital for protecting your family’s future. The cautionary tale of Vaccaro v. Vaccaro et al., 2025 ONSC 6521 underscores the complexities that can arise when probate planning goes awry and highlights the importance of clear communication and proactive planning.

The late Giuseppina Vaccaro owned two properties jointly with her three surviving children – Ross, Josie, and Lillo. During her lifetime, Giuseppina became mentally incapable, and Josie, acting under her Power of Attorney (“POA”), transferred ownership of the properties into joint tenancy with herself and her siblings. While this move may have been intended to simplify estate administration, it sparked a contentious dispute after Giuseppina’s passing in 2021.

Following the sale of one of the properties, the sale proceeds remained in trust as the siblings and extended family could not agree on their distribution. Ross, the applicant, sought the court’s intervention to release his one-third share of the funds. However, Josie and Lillo opposed the application, claiming the proceeds were held in trust for Giuseppina’s Estate. They also raised concerns about unresolved loans given to Ross and their late brother Joe, arguing these amounts should impact the distribution.

Justice Lemay declined to make a definitive ruling on whether the property transfers constituted a valid gift or were held in trust for the Estate. Instead, the decision emphasized that these issues must be addressed through separate estate litigation, where all interested parties, including Giuseppina’s Estate and her grandchildren, can participate.

The case touched on several unresolved legal principles, including:

• Presumption of Resulting Trust: When a parent transfers property to adult children, the law presumes the transfer is not intended as a gift unless clear evidence of intent is provided. This presumption raised questions about the validity of Josie’s actions under the POA.
• Fiduciary Obligations under POA: Josie’s authority as attorney for property required her to act in her mother’s best interests. The transfer of the properties raised concerns about whether her actions aligned with these fiduciary obligations.
• Estate Litigation: Justice Lemay emphasized that Giuseppina’s Estate, which was not a party to the proceeding, was the proper entity to advance claims regarding whether the funds were held in trust.

Ultimately, Justice Lemay refused Ross’s request to release his share of the funds. While acknowledging Ross’s legal ownership as a joint tenant, the unresolved trust claims and the absence of Giuseppina’s Estate prevented a fair resolution. The court directed that the validity of Josie’s authority to gift the property be addressed in broader estate litigation.

Vaccaro v. Vaccaro serves as a reminder of the risks associated with informal probate planning. While transferring property to future beneficiaries may seem like a straightforward way to avoid probate taxes, it can lead to unintended consequences, including litigation, family discord, and the property ultimately being incorporated into the estate.

This case highlights the importance of clear estate planning and open communication. A simple conversation around the dinner table can prevent costly disputes and ensure that your family’s wealth is preserved according to your wishes. As you gather with loved ones this holiday season, take the opportunity to discuss estate and incapacity planning or, if that may get in the way of a peaceful and enjoyable holiday meal, consider raising the subject simply to let your loved ones know that you would like to arrange for a discussion in the New Year. These conversations may not be easy, but they are essential. By addressing these matters proactively, you can save your family from unnecessary stress, legal costs, and uncertainty in the future.

Be the one to start the conversation and ensure your family’s legacy is protected.

Thank you for reading, and happy holidays!