An elderly parent may add their adult child on to title of their home for various reasons including avoiding probate but as a recent case demonstrates there are risks in doing so.

The Applicant was the 88 year old mother of the Respondent. In 2009, she and her late husband bought a house together (the “Property”). In 2014, the Respondent moved in with them.  At that time, the Applicant was estranged from her other children. The Applicant’s husband died in in 2021.

Following her husband’s death in 2021, the Applicant signed documents transferring the Property into joint tenancy with the Respondent for no consideration.  Subsequently, the relationship between the Applicant and the Respondent deteriorated. The Applicant claimed that the Respondent did not contribute to the household expenses and also never provided care to her or her late husband. She was also alarmed with the Respondent’s threats to put her in a nursing home.

The Applicant severed joint tenancy with the Respondent in 2022.  The relationship after severance of title continued to deteriorated necessitating the police’s involvement. The Respondent refused to vacate the Property.  The Applicant sought full ownership of the Property.  The Applicant argued that she held title by way of resulting trust in her favour. Alternatively, she asked the Court to find that the Respondent exercised undue influence to obtain title to the Property and was unjustly enriched, such that a constructive trust should be declared in her favour.

However, the court found that the Applicant intended to gift the 50% interest in title to the Respondent. While the presumption of resulting trust applied to the gratuitous transfer between parent and her adult child, the Respondent was successful in rebutting the presumption of resulting trust by providing evidence of the Applicant’s donative intent. The Court found that the Applicant made the appointment to transfer title to the Respondent, she received independent legal advice at the time of the transfer, and gifting the Property to the Respondent was part of her and her late husband’s testamentary plans.

The Applicant also failed to establish undue influence on the Respondent’s part. While the Applicant had vision impairments and struggled with reading, she was not isolated and remained capable of managing her affairs.  The Applicant could also not prove an unjust enrichment claim as she made a gift of the Property to the Respondent. The Court could also not provide a vesting order because a regretted gift was not a mechanism to vest title back to the Applicant.

The application was dismissed and the Applicant was ordered to pay her son’s costs. The Court remained concerned that the Applicant’s senior years included this stressful living arrangement as the son would not vacate the Property.   The Respondent may also have been in breach of an earlier court order requiring him to pay 50% of the costs associated with the Property. As such, the application was dismissed without prejudice to the Applicant taking further steps to terminate the son’s residency in the Property.