May 15, 2025
Many people in the midst of planning their estate consider adding an adult child as a joint owner on a bank account as a straightforward way to avoid probate taxes and to ensure what they expect will be a smooth transfer of funds after death. In fact, many clients tell us that their deceased parent received explicit advice from their bank that adding an adult child as a joint account holder is an appropriate probate planning strategy. However, relying on joint accounts to transfer inheritance to your children can carry legal complexities that are misunderstood and can lead to unintended consequences.
Under Ontario law, naming an adult child as a joint account holder does not automatically mean that the child becomes the rightful owner of the funds upon the parent’s death. Unless there is clear evidence that the parent intended to gift the funds outright to their child, the law applies what is known as the presumption of resulting trust. This is a legal principle that when a parent transfers property to an adult child without receiving value in return, it is presumed the child is holding the property in trust for the parent’s estate, not as a personal gift. In practical terms, unless the child can prove that the parent intended a true gift, the funds in the account may be treated as part of the estate and are subject to probate.
Disputes typically arise when one child is added as a joint account holder and, after the parent’s death, claims the funds as their own. Other beneficiaries may object, arguing that the account was intended for estate purposes or convenience only. The presumption is that the funds were being held in trust for the estate. Meaning, without clear, contemporaneous evidence of a gift, these cases will often result in lengthy and costly litigation.
These disputes can delay estate administration, trigger court applications, and lead to fractured family relationships. Legal costs pursuing litigation can erode the very funds the joint account arrangement was intended to preserve.
When assessing whether the funds in a joint account are held in resulting trust, courts will consider factors such as: who deposited the funds; how the account was used; whether the deceased retained control; and any written or verbal statements made about the account. Where the evidence is unclear or contradictory, the surviving joint account holder often faces an uphill battle to prove a gift was intended.
Joint accounts can be an appropriate estate planning tool, but they should be used with care and proper documentation. What appears to be a simple banking decision can have far-reaching legal consequences.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Feb 20, 2025
On February 6, 2025, Cara Zacks was a panelist at the Ontario Legal Conference hosted by the Ontario Bar Association. Cara Spoke on a panel with family law lawyer Kelly Jordan on the subject of Marital Contracts After Death. The Panel was moderated by family law lawyer Ibtisam Jemal.
Cara presented on issues related to the enforceability of a marriage contract after death. In particular, she discussed setting aside provisions in a marriage contract through which a spouse releases the right to claim dependent support under the Succession Law Reform Act or to elect equalization after the death of a spouse.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Jan 6, 2025
One of my favourite parts of working as an estate litigator is that our files intersect with so many areas of law. Our clients come to us for our expertise and advice on estate and capacity law, but their complex legal problems often require answers outside our expertise.We work with our clients to find experts in areas of law like tax, employment, family, business, and real estate law, to provide a comprehensive answer to our clients’ legal problems.
Not surprisingly, family law regularly interacts with estate litigation. For example, a surviving spouse may elect to make an equalization payment claim under the Family Law Act rather than take what they are entitled to under their spouse’s will. A surviving spouse may choose to make an equalization claim and, at the same time, a dependant support claim under the Succession Law Reform Act.
Tax law often comes into play in estate litigation. When you die, your assets are deemed to have been disposed of, potentially triggering capital gains tax. When working on a piece of estate litigation, we often work with expert tax lawyers to help us assess the estate’s tax liabilities. When we help our clients negotiate a settlement, we consult with tax experts to help beneficiaries and estate trustees minimize tax liabilities.
Corporate law issues often arise in estate litigation, as well. Often, we act as or represent an estate trustee for estates that own businesses. When this is the case, we may consult a business lawyer to help us find the most practical way to transfer or sell the business or to determine its assets and liabilities.
Employment law is another area that regularly comes up in estate litigation if the deceased owned a business. In such cases, the estate trustee may have to worry about employment contracts as well as ongoing wrongful dismissal claims.
Finally, real estate law frequently intersects with estate litigation. Whether it’s a family home, cottage, or investment property, disputes often arise over ownership of the property, the property value, or whether an estate property should be sold (and for how much) or kept in the family.
Estate litigation does not happen in a vacuum. Although our clients may retain us to assist with a will challenge or a dependant support claim, for example, other areas of law are sure to pop up over the course of the litigation. It’s our job to find lawyers with the right expertise to work with so we can, together, provide helpful and tailored advice to reach a resolution as quickly and efficiently as possible.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Sep 12, 2024
Typically, the expectation when someone dies with a Will is that the beneficiaries named in the Will inherit the estate. Similarly, if someone dies without a Will, it seems reasonable to assume that the estate will be distributed to the beneficiaries established under the rules of intestacy in the Succession Law Reform Act.
While this is all true, there may be a person (or even more than one person) not named in the Will, or who isn’t a beneficiary according to the rules of intestacy, but who is still entitled to funds from the estate, if that person is considered a dependant of the deceased. These dependants may make a claim against the estate for funds, even if they aren’t estate beneficiaries.
When a dependant claims support from an estate, this may mean that beneficiaries end up inheriting a smaller portion of the estate than they otherwise would. It also means that assets that typically pass outside the estate, like an insurance policy, a registered account like an RRSP, or even a jointly owned property, may be considered part of the estate for the purpose of the dependant support claim. This is the case even if these assets have already been distributed to the beneficiaries.
But who qualifies for dependant support from the estate? There is a two-part test set out in the Succession Law Reform Act that helps answer this question. First, the person claiming support must be a dependant of the deceased, meaning they were either a spouse, parent, child, or sibling of the deceased to whom, immediately before death, the deceased was providing, or had a legal obligation to provide, support. Note that “spouse” includes a common-law spouse who was never married to the deceased.
If the person fits within the definition of “dependant”, the next part of the test is to determine whether the deceased made adequate provisions for proper support of that dependant. For example, is that dependant already a beneficiary of the estate receiving proper support? Or is that dependant a beneficiary of the deceased’s life insurance policy and already receiving proper support that way? If not, the dependant may be able to bring a court application for support from the estate.
Lawyers can advise potential dependants, as well as estate trustees, on whether there is a potential dependant support claim, when that claim must be brought, and how it may impact the distribution of the estate.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Aug 30, 2024
We are proud announce that Casey & Moss LLP partners Angela Casey, Angelique Moss, Cara Zacks, and Laura Cardiff have been recognized in the 2025 Edition of The Best Lawyers in Canada™.
Additionally, we are thrilled to congratulate Zara Wong and Adam Giancola on their well-deserved achievement of being named in the 2025 Edition of the Best Lawyers: Ones to Watch in Canada™.
We are extremely honoured to be recognized by Best Lawyers since 2017!
