TL;DR: A resulting trust is a legal doctrine that arises when property is transferred into one person’s name, but a court finds the person who paid for it never intended to give away their beneficial ownership.

Definition

A resulting trust is a legal doctrine that arises when property is transferred to one person, but a court finds that the transferor never truly intended to give it away. In that situation, the person holding the property — even if their name appears on the title at the Land Title Office or on a bank account — is treated as holding it on behalf of the original owner or the original owner’s estate. The beneficial ownership “results back” to the person who provided the asset in the first place.

In plain terms: the name on the document does not always tell the whole story of who truly owns something. In BC, even a name registered on title at the Land Title Office does not automatically confer beneficial ownership — equity can override the registered record.

How It Differs from an Express Trust

An express trust is deliberately created — the person setting it up knows they are creating a trust and typically documents their intention. A resulting trust, by contrast, arises by operation of law. No one plans for it. Courts impose it when the circumstances suggest that a transfer of property was never meant to be an outright gift — even if that was never discussed, documented, or intended in so many words.

The Presumption of Resulting Trust

At the heart of this doctrine is what courts call the presumption of resulting trust. Canadian law presumes that when property is gratuitously transferred to an adult — that is, transferred without the recipient paying meaningful consideration for it — the recipient does not automatically become the beneficial owner. Instead, the law presumes they hold the property in trust for the person who transferred it. This reflects the foundational principle that equity presumes bargains, not gifts.

A co-signature on a mortgage may not constitute meaningful payment unless the person added to title actually bears real financial responsibility for the debt. Where the original owner continues to make all payments and carry the actual burden of the mortgage, the transfer is likely still gratuitous.

This presumption shifts the burden of proof. It falls to the person receiving the property to prove, on a balance of probabilities, that the original owner genuinely intended to make a gift. If the evidence is evenly balanced and a court cannot determine what the transferor intended, the presumption stands and the property returns to the estate.

Where the recipient is a minor child, the opposite presumption applies: transfers from a parent to a minor child are presumed to be gifts under the doctrine known as the presumption of advancement. For adult children, however, the presumption runs the other way.

The Supreme Court of Canada confirmed and clarified these principles in the landmark decision Pecore v Pecore, 2007 SCC 17. In Pecore, a father had placed his financial accounts into joint ownership with his adult daughter. The Supreme Court held that where a parent gratuitously adds an adult child to an account or places property in joint names without the child paying meaningful consideration, the law presumes the adult child holds the property in trust for the parent’s estate — not as their own. Pecore also confirmed that the presumption of advancement no longer applies to transfers to independent adult children.

The Gift of the Right of Survivorship

Pecore recognized an important middle ground: a parent may intend to keep beneficial ownership of a property during their lifetime — continuing to live there, pay the bills, and make all decisions — while also intending that the child receive the property outright upon the parent’s death, outside of the estate. This is called a gift of the right of survivorship. It is an inter vivos gift (made during the parent’s lifetime) of the survivorship interest only, not of the property itself. Where a court finds this was the parent’s genuine intention, the presumption of resulting trust is rebutted — even if the parent retained full control during their life.

How Courts Determine Intent

Because the presumption can be rebutted, courts look carefully at all available evidence surrounding the time of the transfer. The relevant moment is at the time of transfer, not based on what someone may have said or intended later. Key factors include:

  • Whether the person who received the property paid any meaningful consideration for it, including whether they bore real mortgage responsibility
  • What the original owner said to family members, lawyers, BC Notaries, or financial advisors about their intentions
  • How the parties treated the property in practice — who lived there, who made decisions, who paid the mortgage, property taxes, and maintenance costs
  • How the original owner reported the property for tax purposes — for example, whether they claimed the principal residence exemption
  • Whether the transfer was made for a practical purpose such as avoiding probate fees or assisting with financial management — rather than to make a genuine gift
  • Whether the original owner also granted the recipient a Power of Attorney around the same time, which may suggest the intent was to assist with management rather than to transfer ownership
  • The terms of any will made around the time of the transfer
  • Documentary evidence such as written notes, correspondence, or declarations of intent

In Pavlovich v Danilovic, 2019 BCSC 153, a BC father had transferred two properties into joint tenancy with his adult son for nominal consideration. After the father’s death, his daughter challenged whether the son truly owned those properties. The court found the evidence of the father’s intention was ambiguous — the transfers were equally consistent with a tax-saving strategy as with a genuine gift to the son alone. Because the son could not displace the presumption on a balance of probabilities, the court concluded the properties were held on resulting trust for the estate.

In Rodrigues v Berlinguette, 2026 BCSC 671, the BC Supreme Court considered a mother who had added three of her five adult children to the title of the family home as joint tenants. The remaining two siblings challenged the transfer. The court examined what the mother genuinely intended at the time — whether the transfer was a true gift of beneficial ownership to those three children, or whether it should fall back into the estate. The court found that the mother’s clear and consistent intention, as expressed during her lifetime, was to provide a permanent home for those children specifically, and the presumption of resulting trust was successfully rebutted. The case illustrates that clear, consistent evidence of donative intent — ideally documented — can displace the presumption even in a multi-sibling dispute.

A Real-Life Example

Margaret is an 80-year-old widow. To avoid probate and make it easier to manage her finances, she adds her son David to the title of her home as a joint tenant, without any discussion of whether she means to give David the house. She continues to live there, pays all the expenses, claims the principal residence exemption on her tax returns, and later makes a will dividing her estate equally between David and her two daughters.

When Margaret dies, the home passes to David by right of survivorship — it never goes through her estate at all. Her daughters, who expected an equal share, consult a lawyer. Because Margaret added David to title without any meaningful consideration changing hands, the presumption of resulting trust applies. David must now prove that Margaret genuinely intended to give him the house — or at minimum, a gift of the right of survivorship — rather than simply adding him for convenience. If he cannot, a court may find that the home forms part of Margaret’s estate after all, and David may be required to account to the estate for its full value.

This outcome can come as a shock to a surviving joint tenant who believed they were the rightful owner. It is also a source of significant family conflict and litigation cost.

What This Means If You Are the Surviving Owner

If a family member makes a resulting trust claim against a property you hold, the legal and practical consequences can be serious:

  • You may be required to bring a court application or defend against one
  • The property may be treated as an estate asset, subject to distribution among beneficiaries or potential wills variation claimants
  • You may face a claim for the fair market value of the property even if you have already sold it
  • The title to the property may be frozen or encumbered while litigation is ongoing

In British Columbia, resulting trust claims against the family home are particularly common when an elderly parent added only some of their children to title while others exist. Those excluded children may combine a resulting trust claim with a wills variation claim under the Wills, Estates and Succession Act in order to maximize the assets available to dispute.

How to Avoid a Resulting Trust Dispute

The best protection against a resulting trust claim — whether you are the transferor or the person added to title — is clear, contemporaneous documentation of intent. If an aging parent adds a child to the title of a home or a bank account for practical reasons, a written declaration confirming whether that transfer is intended as a gift, a gift of the right of survivorship, or merely a management convenience can be determinative in later litigation.

A BC Notary can assist with the preparation of declarations of trust, transfers of property, and related estate planning documents. Getting the paperwork right at the time of the transfer is far less costly than litigating intent after the fact.

Frequently Asked Questions

What is the difference between a resulting trust and a constructive trust?

Both are imposed by courts rather than created deliberately, but they arise in different circumstances. A resulting trust is based on inferred intent — the property results back to the original owner because no gift was truly intended at the time of transfer. A constructive trust is a remedy for unjust enrichment, imposed when one person has unfairly benefited at another’s expense, regardless of the parties’ original intentions.

Can a resulting trust claim affect a home even after it has already been sold?

Yes. If a resulting trust is established, a court may find that the person who received the property held it as trustee from the moment of transfer. If the property has since been sold, the claimant may be entitled to the sale proceeds rather than the property itself.

Does the presumption of resulting trust apply between spouses?

Not in the same way. Between spouses, courts typically apply a presumption of advancement — meaning transfers between spouses are presumed to be gifts. The presumption of resulting trust applies most commonly to gratuitous transfers from parents to independent adult children.

What evidence can rebut the presumption of resulting trust?

Courts look at all evidence surrounding the transfer, including what the transferor said at the time to family members, legal professionals, or financial advisors; the terms of any contemporaneous will; who paid ongoing expenses and claimed tax benefits such as the principal residence exemption; whether any Power of Attorney was granted around the same time; and any written declarations of intent. The more contemporaneous and documented the evidence, the more persuasive it tends to be. If the evidence is evenly balanced, the presumption stands and the property returns to the estate.