In the recent decision of Buffa v. Giacomelli, 2025 ONSC 4024 (CanLII), the court considered whether withdrawals from joint bank accounts are valid inter vivos gifts. The mother had two children: a son (the applicant), and a daughter (the respondent). The respondent made the withdrawals from joint accounts with her mother. The withdrawals amounted to approximately $1.7M and were withdrawn over the course of about 1.5 years. The applicant argued that the joint accounts are impressed with a resulting trust and form part of the mother’s estate. The mother’s will provided that her estate would be split 45% to the son and 55% to the daughter. The daughter was appointed the estate trustee, with the son as the alternate. The mother did not change her will.

As a refresh, to establish a valid gift three elements must be present: (i) an intention to gift; (ii) acceptance of the gift; and (iii) sufficient delivery of the gift. The court found that the second and third elements were established  so it focused on the first element: intention to gift. The relevant time period to assess the mother’s intention is when she made the changes to her assets.

The mother died in October 2023 and was predeceased by her husband (and father to the applicant and respondent), who died in December 2019. Just days after her husband died, the son’s lawyer sent a letter to the mother’s lawyer alleging that she was incapable of acting as estate trustee and proposing the appointment of a third party estate trustee. The daughter’s evidence was that her mother was “shocked and rattled by the notion” that her son tried to interfere with her husband’s wishes and dictate the mother’s living arrangements. Although the court found the daughter’s evidence was hearsay, it was also a reaction that was “entirely plausible.” The evidence established that the son had no contact with his mother after his father’s death, had not been close to his mother for many years, and had been estranged from his sister for 30 years. The court rejected the son’s evidence that he called his mother over 40 times but not once did he leave a message on her answering machine. In contrast, the daughter had a very close and loving relationship with her mother.

The court found that soon after the son’s letter was sent to the mother’s lawyer, the mother converted her bank accounts to joint accounts with her daughter (January 2020). A couple of months later (March 2020), the mother designated her daughter as sole beneficiary of her RIF and TFSA. In May 2020 the mother wrote two letters setting out her plan to sell her condo and have the sale proceeds deposited into the joint accounts, and to have her investments deposited into the joint accounts.

The mother first showed signs of dementia in the fall of 2021, but the court found there was no evidence of diminished capacity or cognitive issues when the mother made her bank accounts joint and designated her daughter as sole beneficiary. The daughter lived 400 km away from her mother and the court found no relationship of dominance or dependency between the mother and her daughter. The court also found that the mother was determined to assist her daughter in buying property in Florida, that the mother was independent and active. The court found that the son had great hostility and animus toward his sister, which was the driving force behind the litigation. The court concluded that the mother had an intention to gift the assets to her daughter, even though doing so seemed contrary to her will. The mother’s decision was motivated by her close and loving relationship with her daughter, rather than the estranged and difficult relationship with her son. With the finding of the mother’s intention to gift, the daughter successfully rebutted the presumption of resulting trust and was not ordered to repay any money to the estate.