The Supreme Court of Canada decision in Pecore v Pecore, 2007 SCC 17, was released on May 3, 2007, and, pardon the trust joke, will reach its 21st anniversary in two years’ time. The significance of Pecore on present day estate litigation is ubiquitous. Its ratio is simple: Where a gratuitous transfer is made from a parent to an adult child, a presumption of resulting trust arises and it is presumed that the adult child holds the property in trust for their parent or their estate.
This has given rise to countless disputes about whether the joint bank/investment accounts between adult child and aging parent are assets of the adult child by right of survivorship after death, or assets of the estate because of the presumption of resulting trust in Pecore. Like most presumptions at law, the presumption in Pecore is rebuttable. But how do you rebut this presumption? What do you need once one-half of the equation is dead and the corroboration requirement of section 13 of the Evidence Act is applicable?
So let me ask you, when was the last time you read Pecore from start to finish? Pecore has detailed sections on what standard the presumption is to be rebutted; how courts should treat joint accounts; what evidence a court may consider in determining the intent of the transferor; and evidence subsequent to the transfer. Sometimes with cases that are so well known, we might take for granted its instructive value.
With the Court of Appeal’s recent decision in Buffa v. Giacomelli, 2026 ONCA 566, the Court was once again faced with a Pecore dispute and what it takes to rebut the presumption of resulting trust. Can you consider evidence of the close relationship between mother and daughter when the joint accounts were opened, when deposits were made by the mother, and when withdrawals were made by the daughter? Conversely, can you consider evidence of the strained relationship between the mother and her other child, i.e. the child who is now claiming that the joint account are assets of the estate? Do you need evidence in support of intention and of capacity at the time of every withdrawal from the joint account? What would give rise to the presumption of undue influence in the context of inter vivos gifts – what is or is not a relationship in which there is an “inherent potential for domination”?
I’ve decided to write today’s blog with more questions than answers. Not because I’m being coy but because I would like to invite our readers to read these cases (even in part!) for themselves. I’m lucky to have my legal research expedited through the use of AI research tools. It is now much faster to find what I’m looking for (with fewer clicks to wade through what’s relevant and what’s not even in the ballpark) but there is always value in taking the time to read and consider what AI brings to our attention.
Thanks for reading!