What is the legal effect when a parent adds only some of their children as joint tenants on title to a property?

This issue arises frequently in estate litigation. Disputes often occur when one child is added to the title of a parent’s property or a bank account as a joint tenant with right of survivorship, while their siblings are not. These cases turn on whether the parent intended the asset to pass to the named child directly, or whether the child was instead holding the property ‘in trust’ for the parent’s estate.

The distinction is important. If an asset passes by survivorship, it falls outside the estate and is not distributed under a will/intestacy (and may avoid wills variation claims).

Where an adult child is added to title gratuitously, the law presumes they hold the beneficial interest for the parent during life and for the parent’s estate on death. However, this presumption can be rebutted if the evidence shows the parent intended a gift, including a gift of the right of survivorship.

The B.C. Supreme Court recently considered this scenario and the applicable legal principles in Rodrigues v. Berlinguette, 2026 BCSC 671.

Background

The dispute concerned five siblings and their late mother’s home.

Marlene Berlinguette purchased the subject property in 1992. Her son Albert (a plaintiff) was added to title as a tenant in common to assist with mortgage qualification.

In 2008, Albert was removed from title (with his consent) due to concerns about tax debt and potential creditor enforcement. Marlene obtained a new mortgage and added three of her children – the defendants, Kellie, Lorne, and Rene – onto title as joint tenants. The defendant children were also co-signors on the mortgage.

While the defendants resided with Marlene in 2008, they did not pay for their registered interests in the property. Marlene paid the mortgage, property taxes, and major expenses. The defendant’s contributions to household costs were occasional and limited. All the defendant children viewed the property as their mother’s home.

Over the years, Marlene consistently expressed that any child (or grandchild) of hers who needed a home would always have a place to live with her. By 2008, the plaintiffs, Albert and Cherie, had stable homes and spouses, while the defendant children remained with their mother.

Marlene died intestate in 2017. The defendants remained in the property for several years following her death. It was later sold in the context of civil forfeiture proceedings arising from Rene’s criminal conduct. The proceeds were ultimately used by Kellie and Lorne to purchase a home in Harrison in their names alone.

The plaintiffs claimed the property (and its proceeds) belonged to the estate under a resulting trust. The defendants claimed it passed to them by survivorship.

The Law

The governing authority in this area is the Supreme Court of Canada decision of Pecore v. Pecore, 2007 SCC 17 .

In Pecore, the Court held that where a parent gratuitously transfers property to an adult child in joint tenancy, the law will presume a resulting trust in favor of that parent and their estate upon death.

To rebut the presumption of a resulting trust, the adult child bears the burden of proving a gift was intended on the balance of probabilities. The relevant period for determining the parent’s intention is at the time of transfer (and not death).

Pecore recognized three possible situations involving jointly held property between a parent and an adult child:

• a true joint tenancy, where both parties share legal and beneficial ownership;
• a resulting trust, where the adult child holds legal title only, while the beneficial interest remains with the parent or the parent’s estate; or
• a gift of the right of survivorship, where the parent keeps beneficial ownership during their lifetime but intends the surviving joint tenant child to receive the property outright upon death.

Courts consider all relevant direct and circumstantial evidence of intention surrounding the circumstances of the transfer. If the actual intention of the parent cannot be determined, then the presumption of resulting trust is applied and resolves the uncertainty in favour of the estate.

Application to the Case

The Court found the 2008 transfer was gratuitous. The defendants did not contribute to the purchase and despite co-signing the mortgage did not assume meaningful financial risk.

The Court nevertheless held the presumption of resulting trust was rebutted.

The evidence showed Marlene’s overriding concern was ensuring her children would have a home if they needed it. In 2008, Albert and Cherie were established in their own homes, while the defendant children continued living with her.

The Court accepted that Marlene deliberately structured ownership as a joint tenancy both to protect the property from creditor claims and to ensure Kellie, Lorne, and Rene would receive the home by right of survivorship.

The Court noted that Rene brought no credit, income, or assets to support the mortgage. It found the only rational explanation for Marlene placing him (and Kellie and Lorne) on title was to ensure a place to live after her death.

The Court found Marlene intended to retain beneficial ownership during her lifetime, while gifting the right of survivorship to the defendants.

The action was dismissed, and the property did not form part of the estate.

Key Takeaways

• Joint tenancy alone does not determine beneficial ownership of an asset – gratuitous transfers from parents to adult children trigger the presumption of resulting trust.
• The adult child bears the burden of proving a gift or gift of survivorship was intended at the time of transfer.
• The law recognizes that a parent can retain beneficial ownership during their lifetime while simultaneously gifting a right of survivorship to their child.