Recent years have seen a notable increase in disputes involving inter vivos gifts and joint assets, with courts grappling with complex questions about donor’s intention, the adequacy of documentation, and the observance of fiduciary obligations, especially where joint accounts and property transfers are involved. These issues are central to estate planning, and their rising prominence reflects both the popularity of joint accounts and the creative, sometimes problematic, ways families use them. This article examines recent case law, highlighting trends, evidentiary challenges, and best practices for avoiding litigation.
THE CHALLENGE OF INTENTION AND DOCUMENTAITON
Determining whether an inter vivos gift was genuinely intended often hinges on documentary evidence and the context of the transfer. In Hugginson v. Hugginson, a father with declining capacity allegedly intended to gift $400,000 to his daughter.[1] Despite meeting with a financial advisor and a lawyer who executed a “gift letter,” the absence of a specific amount and the lack of fund transfered before his passing undermined her claim.[2] Acting as estate trustee, the daughter transferred $400,000 from her father’s investment account to herself after his death.[3] The court found the transfer invalid because the gift had not been perfected, and the court stressed that a properly executed deed of gift is essential to confirm intention.[4]
The court applied the three-part test from McNamee v. McNamee; specific intention to make a gift by the donor, delivery of the gift, and acceptance by the donee.[5] Here, the intention was not proven, and the gift was not perfected.[6] The court found that the evidence was insufficient and stated that a deed of gift would have been the proper tool. This case underscores the importance of clear documentation and the risks of relying on informal arrangements.
JOINT ASSETS AND THE PRESUMPTION OF RESULTING TRUST
Property being held jointly is a common estate planning tool, but uncertainty arises when the true ownership of the asset is disputed. Balkisoon v. Sandy, involved a mother who purchased a property for $900,000, and registered it in her son’s name, but had indicated in a handwritten will that she intended to divide the sale proceeds equally among her children.[7]Examination of their communication via text messages between the mother and son described the property as an “inheritance gift” for both the son and his sister.[8]
When the relationship between the mother and son deteriorated, the mother sought to reclaim the property, claiming it was held on resulting trust. The court applied the Pecore presumption, examining contemporaneous text messages.[9] In the messages the mother references to an “early inheritance” and she made statements that the proceeds were her children’s money.[10] The court found that their communication and testamentary documents supported the finding of a completed gift, allowing the son to rebut the presumption of resulting trust and retain ownership. The son successfully rebutted the presumption of resulting trust, and the property was deemed a valid gift.[11]
By contrast, Di-Turi v. Di-Turi Seemann, saw the presumption of a resulting trust upheld, as the son’s arguments in favour of a gift were not corroborated by evidence.[12] In Di-Turi, a mother paid approximately $350,000 to purchase a house and registered it in her son and daughter-in-law’s names.[13] The son and daughter-in-law did not contribute to the purchase but later contributed to expenses.[14]
The son argued that as the only child, his mother must have intended to benefit him. However, the court found no corroborating evidence of a gift. A taped conversation where the mother said “that was then, and this is now” was deemed unhelpful, and the court found the taping of a conversation with his mother without her knowledge reflected negatively on the son. Courts remain cautious, and negative impressions from informal recordings can undermine credibility and the prospect of a successful claim. The case highlights evidentiary challenges and the importance of clear documentation.
FIDUCIARY OBLIGATIONS AND SELF-DEALING
Cases involving powers of attorney highlight unique risks, including self-dealing and undue influence. In Doherty v. Doherty, a son, acting under his mother’s power of attorney, transferred over $330,000 from his mother’s account into a joint account he held with his wife and son.[15] He claimed the transfers were inter vivos gifts.[16] Evidence uncovered by a capacity assessor supported the finding that no gift was made, as they found that the mother was pressured to sign documents, believing they were for home renovations, not for transferring funds.[17]
The court found no evidence of a genuine intention to gift, leading to the court voiding the transfers and ordering repayment.[18] The case highlights the statutory and fiduciary obligations of those acting as powers of attorney, including the prohibition on self-dealing without court approval.
Re Hartin Estate, further emphasizes these risks. In this case, Mary, managed her mother, Evelyn’s, affairs under a power of attorney.[19] Over the years, large sums were transferred from joint accounts for property renovations and other expenditures.[20] The court held that Mary could not prove Evelyn intended to gift her the right of survivorship to the assets.[21] The absence of independent legal advice and transparency reinforced the court’s decision that undue influence had tainted the transactions.[22]
These cases illustrate the risks of undue influence and self-dealing by fiduciaries. The court emphasized the importance of transparency and independent advice, noting that even seemingly minor benefits can create a narrative of self-dealing.
INFORMAL EVIDENCE AND CREDIBILITY
Increasingly, courts are confronted with informal evidence, when adjudicating these claims. In Buday v. Buday (Estate), a father allegedly gifted a property to his son Brian, who occupied it for 35 years and paid for all expenses and renovations.[23] The legal title remained in the father’s name, and there was no documentation of the transfer. The other son, Glen, contested the gift.
The court found credible evidence of a gift, including the father’s treatment of the property and neighbour corroboration.[24] The son rebutted the presumption of resulting trust, and a vesting order was granted in his favour.[25]
This case demonstrates that longstanding possession of property, corroborated by the donor’s behaviour and witness testimony, can support the finding of a valid gift even in the absence of formal documentation.
LESSONS FOR PRACTITIONERS AND FAMILIES
Some lessons for practitioners and families that can be taken from these cases are that:
- Clear documentation is essential. Courts consistently emphasize the need for clear, documented evidence of intention to gift. Informal “gift letters” or verbal promises are insufficient to perfect inter vivos gifts. Deeds of gift are recommended to secure intent and delivery.
- Independent legal advice when drafting Power of Attorney transactions protects all parties. Wills and Power of Attorney documents lacking independent legal advice increase the risk of future challenges.
- Modern electronic communications warrant attention. Text messages, taped conversations, and other informal evidence are increasingly relevant but can be problematic. Courts are cautious about relying on such evidence, especially when it reflects negatively on the parties involved. However, these forms of evidence are still increasingly influencing courts’ assessment of donor intention.
- Fiduciaries must avoid self-dealing and maintain transparency. Undue influence or evidence of personal benefit especially couples with a lack of independent legal advice can undermine claims of valid gifts.
- Presumptions of resulting trust is a powerful tool and operates strongly where intent is not clear. Rebutting this requires credible evidence of a genuine intention to gift.
For estate planners, these cases underscore the importance of precise legal drafting, thorough client communication, and vigilance in documenting the intention, delivery, and acceptance of gifts and the management of joint assets.
If you require guidance regarding your current joint ownership structure or inter vivos gifting, the team at Cactus Law Professional Corporation is here to help. Contact Cactus Law today for advice tailored to your estate plan.
Written by: Maya Kawale
[1] Hugginson v. Hugginson, 2025 ONSC 1797 [Hugginson]
[2] Ibid, at para 12
[3] Ibid, at para 16
[4] Ibid, at para 43
[5] Ibid, at para 19; McNamee v. McNamee, 2011 ONCA 533, at para 43 [McNamee]
[6] Ibid, at para 43
[7] Balkisoon v. Sandy, 2025 ONSC 856 [Balkisoon]
[8] Ibid, at para 24, 29
[9] Pecore v. Pecore, 2007 SCC 17 [Pecore]
[10] Supra, note 7 at para 60c-d
[11] Ibid, at para 61
[12] Di-Turi v. Di-Turi Seemann, 2025 ONSC 5000 [Di-Turi]
[13] Ibid, at para 5
[14] Ibid, at para 9
[15] Doherty v. Doherty, 2023 ONSC 1536 [Doherty]
[16] Ibid, at para 3
[17] Ibid, at para 26 & 57
[18] Ibid, at para 92
[19] Re Hartin Estate, 2024 ONSC 5754 [Re Hartin Estate]
[20] Ibid, at para 58
[21] Ibid
[22] Ibid, at para 38(e)
[23] Buday v. Buday (Estate), 2025 ONSC 3385, at para 14 [Buday]
[24] Ibid, at para 39-40
[25] Ibid, at para 62