The Gift of the Right of Survivorship

A friend called the other day distressed at the conduct of her elder and only sibling.  He had said and done mean things, and taken financial and emotional advantage of their aging mother, now in a care home.  The brother was a sponger.  He lived rent and expense-free in mum’s home despite efforts to get him to leave.  He had not worked in years and was taking advantage of his mum.  My friend’s question was about the legal effect of her mother putting title to her home and her bank account into joint tenancy with her dutiful daughter.  What rights would the greedy brother have to make a claim to these assets after mum died?

In the ordinary world, when two people hold an asset as “joint tenants” it means that upon the death of one, the asset is transferred to the remaining person for their absolute use.  The jointly held asset does not become part of the deceased person’s estate.  This is called the right of survivorship,  a common form of ownership for property and bank accounts, particularly for spouses.  However, adult children are often gratuitously made joint tenants to property or bank accounts of an aging parent.  This is frequently done for legitimate and practical purposes.  It can be an estate planning tool and can also make dealing with a frail parent’s financial affairs easier for an adult child assisting them.

However, there can be problems with this type of gratuitous transfer where the adult child has not contributed to the bank account or to the acquisition and upkeep of the property.  In cases like this, the law will impose a “resulting trust” upon the surviving joint tenant, such that they will be treated as holding the property now in their name alone as being in trust for the estate of the deceased parent.  As explained by Justice Francis in a recent case (though not an estate case):

“When a property is purchased by one party but title is held jointly by two parties, there is a presumption that the party providing the purchase funds intended to retain the entire beneficial interest, including the right of survivorship, unless there is evidence to the contrary.”[1]

The law treats this as a rebuttable presumption: it is presumed the asset is held in trust unless it is proven, on a balance of probabilities, that the right of survivorship was gifted to the remaining tenant at the time of the transfer into joint tenancy.  Put into legalese:

“A gift is a gratuitous transfer made without consideration.  Two requirements must be met for an inter vivos gift to be legally binding: the donor must have intended to make a gift and must have delivered the subject matter to the donee.  The intention of the donor at the time of the transfer is the governing consideration.  In addition, the donor must have done everything necessary, according to the nature of the property, to transfer it to the donee and render the settlement legally binding on him or her.”[2]

The question then becomes what, in each case, is “evidence to the contrary” that rebuts the presumption of resulting trust?  Put another way, what indication is there that the parent putting the asset into joint tenancy (be it land or a bank account) intended, at that time, to “gift” the right of survivorship to the adult child, the other joint tenant? 

In the case before Justice Francis noted above, the evidence established that when the property was put into joint tenancy, the donor “did not wish for [the donee] to have any ownership interest in the Home during his lifetime, but he wished for [the donee] to inherit the Home on his death.”[3]  That evidence amounted to “an immediate, inter vivos gift . . . of the right of survivorship in property, with the donor of the gift retaining all remaining right and interest in the property during their lifetime.”[4]  On the donor’s death, the property was meant to pass to the donee and would not, therefore, be held on a resulting trust in favour of the donor’s estate.  A gift of the right of survivorship, once made, cannot subsequently be revoked by the donor. 

Another example of the rebutted presumption involved a mother transferring her home into joint tenancy with one of her sons.  At first, she intended him to hold it in trust for her but, a few years later, she signed a document that had the effect of making an immediate gift of the incident of the joint tenancy to her son.  For that reason, the son was able to rebut the presumption and defeat a clam by his mother’s estate that he held title to the home in trust for the mother’s estate.[5]

For the friend who asked about this, the answer depends on what evidence exists that her mum intended, when putting these assets into joint tenancy, to gift to her the right of survivorship.  If that evidence exists, then it will help defeat any claim to these jointly held assets that the bad brother later tries to make through his mother’s estate.

If you are considering a gratuitous transfer into joint tenancy of an asset, you need to think about whether you want the property held in trust for you or your estate by the joint tenant or whether you are intending to gift it to them on your death.  Once you have made that decision, you need to record your intentions somewhere so that, when and if that joint tenancy is challenged, your surviving tenant can establish what your true wishes were.

If you have any questions, please feel free to contact the authors.

[1] Kennedy v Smith, 2022 BCSC 1622 at para 78 [Kennedy].

[2] McKendry v. McKendry, 2017 BCCA 48 at para 31 [McKendry].

[3] Kennedy, supra note 1 at para 81.

[4] Ibid at para 86.

[5] McKendry, supra note 2.


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