Many questions arise when co-trustees cannot agree. Who gets to bring the fight to court? What happens to the assets in dispute while they sort it out? The Ontario Superior Court of Justice’s decision in Craib v Craib, 2026 ONSC 3074, tackles both questions in the context of a family estate dispute among three brothers acting as joint estate trustees for their late parents’ estates.
Background
Mirror wills were executed by a couple in 2012, leaving their estates to one another and, in the alternative, in equal shares to their three sons, who were also named as alternate estate trustees. In June 2020, one son was added as a joint holder on a bank account. Upon the passing of the deceased holder, the son took control of the joint account. Another brother brought a motion seeking a declaration that the account was subject to a resulting trust in favour of the estate, along with broader production of account records.
Standing
Siran J. held that the applicant had standing on two independent bases: as a beneficiary with a personal financial interest in both estates, and as a named alternate estate trustee for both estates. This tracks the threshold set out in rr. 74.15 and 75.05 of the Rules of Civil Procedure, which extend standing in estate matters to named trustees, beneficiaries, and anyone with a financial interest, a standard applied in a manner consistent with prior authority such as D’Angelo Estate, Re, 2010 ONSC 7244.
The respondents relied on the Ontario Court of Appeal’s decision in Cahill v Cahill, 2016 ONCA 962, for the proposition that co-trustees must act unanimously and cannot be excused for passive acquiescence in a co-trustee’s conduct. Siran J. distinguished Cahill on its facts: that case concerned a trustee who had abdicated her responsibilities and sought to avoid liability for her co-trustee’s actions, whereas Craib involved trustees actively at odds over estate administration. On the practical point, Siran J. reasoned that if the applicant did not raise the issue, no one else would.
The Resulting Trust Claim
On the merits, Siran J. applied the framework from the Supreme Court of Canada’s decision in Pecore v Pecore, 2007 SCC 17 at para 24, [2007] 1 SCR 795, confirming that the presumption of resulting trust is a rebuttable presumption of law applying to gratuitous transfers, with the onus on the transferee to establish that the transferor intended to gift the right of survivorship. The parties did not dispute that the presumption applied to the June 2020 transfer.
Where the court disagreed with the applicant’s position was on process: the existence of the presumption does not itself entitle a moving party to a summary declaration of resulting trust. Siran J. found that determining whether James could rebut the presumption required a full evidentiary record and credibility findings, making the resulting trust claim a triable issue unsuitable for determination on motion. The court ordered James to produce only the account statement as of the date of death, declining broader production in the absence of a particularized basis for it.
Estate Trustee During Litigation
Perhaps the most consequential order in the decision is procedural rather than substantive: Siran J. prohibited any further motions in the matter until an Estate Trustee During Litigation is appointed for the father’s estate, carving out only motions for directions under r. 75.06. This aligns with the broader trend in Ontario estate litigation, reflected in decisions such as Zarrin-Mehr v Shokrai, 2024 ONSC 6319, and Agostino v Agostino, 2025 ONSC 6009, of favouring ETDL appointments wherever co-trustees are in a genuinely adversarial posture, so as to preserve a neutral hand on estate assets while the underlying disputes are litigated.
Takeaway
Craib is a useful reminder that standing in estate disputes evolves with the facts. A motion dismissed for want of standing in 2023 can succeed in 2026 once the beneficiary’s interest crystallizes. It also reinforces that Pecore‘s presumption of resulting trust, while doctrinally settled, rarely resolves a dispute on a summary basis; full findings of fact and credibility are usually required. Practitioners advising co-trustees in conflict should take note of the court’s evident preference for ETDL appointments as the mechanism of first resort once trustee relations break down.