Today’s post was written by Nina Fainman-Adelman, Associate and Ashely Thornton, Articling Student, Gowling WLG (Canada) LLP

Resulting trusts is an equity-based tool for reallocating property when legal joint title does not reflect the intentions of a testator who held the property or account jointly with another individual. A resulting trust responds to the absence of donative intent: equity presumes that a transferor did not intend to make a gift and that beneficial ownership “results back” to the transferor unless the transferee proves a gift.[1] In contrast, the presumption of advancement is a rebuttable presumption that the transferor intended that the transfer of title represent a gift to the transferee.[2]

In Ontario, courts consistently apply the presumption of resulting trust to gratuitous transfers, especially between parents and adult children and in the joint-account context. The presumption shifts the burden to the transferee to establish a valid gift on the balance of probabilities.[3]

The “presumption in favour of resulting trust” is, thus, an evidentiary default that arises where an owner gratuitously places an asset, frequently a bank account, into joint names. The transferee then must rebut the presumption by showing the transferor’s actual donative intention at the time of the transfer. Courts weigh all the evidence, including documents, third‑party statements, and conduct, to ascertain that intention.

Atkins v Chamberlain, 2025 ONSC 866

The Ontario Superior Court had the opportunity to revisit this doctrine and clarify the appropriate analytical framework in the recent decision, Atkins v Chamberlain. In this case, the transferor (the deceased) had added the transferee (her brother), as a joint holder of several accounts. Upon the transferor’s death, the surviving joint holder claimed the balance by right of survivorship, while the estate asserted the presumption of resulting trust. The estate’s position was that the joint holdings were for convenience and asset management due to the transferor’s declining capacity, not intended as a gift of the survivorship interest.[4] The court’s task was to determine the transferor’s actual intention at the time the accounts were made joint and whether the presumption had been rebutted.

Reviewing the case law on the presumption of a resulting trust, the court set out a practical roadmap for analyzing whether joint accounts should be presumed to be a resulting trust, distilling the following factors that courts will consider in determining if the presumption of resulting trust has been rebutted or not:

1. Equity assumes bargains, not gifts.[5]
2. Section 13 of the Evidence Act requires corroboration of the transferee’s evidence; their uncorroborated testimony cannot carry the day.
3. The transferee must positively prove donative intention behind creating the joint accounts.[6]
4. The evidentiary standard is on a balance of probabilities, but the evidence must be clear, convincing, and cogent.[7]
5. Absent clear documentation, third‑party statements, or transferor conduct indicating a gift, the presumption of resulting trust will prevail.[8]
6. Survivorship rights vest when the joint account is opened; any gift of survivorship is inter vivos.[9]
7. The court must weigh all evidence of the transferor’s actual intention to decide if the presumption is rebutted.[10]
8. Post‑transfer statements are admissible but must be scrutinized for reliability and relevance to intention at the time of transfer.[11]
9. Bank account forms concern legal title and are not evidence of an agreement on beneficial ownership.[12]
10. Use and control of funds may be only marginally helpful and are not determinative without more.[13]
11. A power of attorney is not determinative and must be treated with caution.[14]
12. A valid gift negates unjust enrichment by supplying a juristic reason.[15]
13. In fluctuating joint accounts, the gift (if any) is of the survivorship interest in the balance at death, not of any particular sum.[16]
14. A gift requires capacity, intention, delivery, and acceptance.[17]

Applying the factors to the facts of the case, the court held that the transferee did not establish on a balance of probabilities that the transfer of the deceased’s bank account into joint title was intended as a gift with survivorship interest. The court held the presumption of resulting trust applied because the transferee provided no corroborated, independent evidence of donative intent as required by s. 13 of the Evidence Act, and there were no bank records or witnesses to support his account of the Joint Accounts’ creation and use.[18] The surrounding circumstances, such as the account’s convenience purpose, the transferee’s lack of transparency with other family members (who were otherwise involved in the transferor’s finances), and a will leaving the residue equally to them, undermined any claim of a gift.[19] Without more evidence on key events, and only the transferee’s unsubstantiated recollections,  the presumption was not rebutted.[20]

Overall, Atkins clarifies the test to be applied and factors to be weighed in considering whether the presumption of a resulting trust should stand. Most importantly, the decision highlights even when money is held jointly and the law presumes a resulting trust, the court is primarily concerned with the testator’s intent. Understanding the factors that the court will consider to determine the testator’s intent is crucial for proper estate planning. For planners, the lesson is to document intent unambiguously. For litigants, the lesson is to build or attack the evidentiary chain at the moment of transfer. Either way, Atkins provides a better framework for analyzing the presumption of a resulting trust when money is held jointly.

 

[1] Pecore v Pecore, 2007 SCC 17 at para 20.

[2] Pecore v Pecore, 2007 SCC 17 at para 27.

[3] Pecore v Pecore, 2007 SCC 17 at para 43.

[4] Atkins v Chamberlain, 2025 ONSC 866 at para 15.

[5] Burns Estate v Mellon, 2000 CanLII 5739 (ON CA), at para. 4.

[6] MacIntyre v Winter, 2021 ONCA 516 at para 25.

[7] MacIntyre v Winter, 2021 ONCA 516 at para. 25 citing F.H. v. McDougall, 2008 SCC 53 at para. 46

[8] Madsen Estate v Saylor, 2007 SCC 18 at paras 17-18.

[9] Pecore v Pecore, 2007 SCC 17 at para 48.

[10] Pecore v Pecore, 2007 SCC 17 at paras 44 & 55.

[11] Pecore v Pecore, 2007 SCC 17 at para 59; Andrade v Andrade, 2016 ONCA 368 at para 63; MacIntyre v Winter, 2021 ONCA 516 at para 41.

[12] Pecore v Pecore, 2007 SCC 17 at para 60.

[13] Pecore v Pecore, 2007 SCC 17 at para 60.

[14] Pecore v Pecore, 2007 SCC 17 at para 68.

[15] Johnston v Song, 2018 ONSC 1005, at para 33.

[16] Pecore v Pecore, 2007 SCC 17 at para 68.

[17] Leclerc v Rocheleau, 2016 ONSC 6396, at para. 20; Johnston v. Song, 2018 ONSC 1005, at para 26.

[18] Atkins v Chamberlain, 2025 ONSC 866 at paras 61-68.

[19] Atkins v Chamberlain, 2025 ONSC 866 at paras 62-68.

[20] Atkins v Chamberlain, 2025 ONSC 866 at para 59.