This blog post was written by: Alicia Mossington, Estate and Trust Consultant, Scotiatrust London

Although almost 18 years have passed since the release of the decision in Pecore, questions about joint ownership of assets in estate planning continue to be the number one items raised by estate planning clients for this author.

 

In 2025, the saga of estate litigation following joint ownership continues.

 

In Ontario, the most common form of joint ownership is “joint with right of survivorship.” This usually means that when one owner dies, the asset or account transfers to the surviving owner. Pecore[1] altered the presumption in certain cases, notably, where a parent transfers the asset into joint ownership with an adult child (or children). In these circumstances, the court may presume that the surviving account owner holds the contents of the account (or asset) on a resulting trust for the estate of the deceased.

 

To rebut the presumption, the surviving owner must prove that the transferor intended to give them the right of survivorship. The court in Pecore listed a number of categories of relevant evidence that might be supplied, including:

• evidence subsequent to the transfer
• bank documents if sufficiently detailed and clear about equitable interests
• control and use of the funds in the account (although the weight given may be marginal)
• granting a power of attorney (if this might be indicative of intention)
• tax treatment

 

… in weighing the evidence, the determination will be on a balance of probabilities.

 

Two cases decided in 2025 are striking to this author because they represent very common client scenarios and are great illustrations of the importance of regular and ongoing planning conversations with clients, as well as the importance of documenting intention.

 

In Chieffallo v Blair[2], Elisa opened an account in 1990 and later added her mother Yvonne Chieffallo as joint owner. It was clear that Elisa and her husband had deposited thousands of dollars into the account over time but that Yvonne had also intermingled a smaller portion. When Yvonne died, her other children took the position that the joint account formed part of her estate.

 

The court found that there was “nothing gratuitous” about the account. The presumption of resulting trust did not arise because Elisa (daughter) opened the account and later added her mother. The court further added that “there is nothing in the evidence to suggest that Yvonne did not intend the account to pass by right of survivorship to Elisa.”

 

It is important to note that due to the reversal of the relationship, the presumption did not apply. If Yvonne had opened the account and added Elisa, then the presumption of resulting trust would have applied.

 

In Atkins v Chamberlain,[3] the court was asked to determine whether the presumption of resulting trust had been rebutted by Bruce, the brother of Christine. Prior to her death, Christine’s health declined she was regularly assisted by her brother Bruce and his wife Linda. Her children, Tammy and Martin, worked full-time and the evidence presented was that Bruce assisted Christine with paying her bills as well as regular shopping. In 2020 Christine also began staying with Bruce four days per week. During a branch visit the ownership of two of Christine’s accounts were changed to be owned jointly with Bruce. After reviewing the evidence presented by the parties and a thorough review of jurisprudence, the court held that:

[…] It is not even clear to me that Christine was aware of the creation of the joint accounts, the deposit into the Joint Accounts in May 2020 or the withdrawals and deposits into investments in July 2022, let alone that she approved them or intended them to be gifts to Bruce. No documents were produced relating to the creation of the Joint Accounts and no independent evidence or witness from [the bank branch] was produced that could speak to anything about the day on which the joint accounts were created.

 

Ultimately, the court concluded that Bruce had failed to rebut the presumption of resulting trust to establish that the joint accounts were a valid gift. Therefore the proceeds were found to be assets of Christine’s estate.

 

These cases are illustrative of clients and client scenarios brought to estate planners and advisors weekly. Although Pecore was released almost 20 years ago, the consequences and risks of joint ownership of assets continues to be misunderstood or minimized, leading to a lengthy wake of costly estate litigation.

[1] Pecore v Pecore, 2007 SCC 17.

[2] Chieffallo v Blair, 2025 ONSC 3411.

[3] Atkins v Chamberlain, 2025 ONSC 866.