Family Estate Planning: Brother and Sister at Odds


Daughter has a Power of Attorney (POA) over her mother. She just found out her brother has put himself on title with the mother on her house a few months ago. Does she have any recourse?


Until the mother passes away or becomes incompetent this is solvable. A lawyer should be retained at once.

Who is the lawyer who has been acting on behalf of the mother? Was the POA recent? Is the mother still competent?

Why are the brother and sister acting in cross-purposes? This doesn’t make any sense.

It can be a logical step for the mother to place the title in Joint Tenancy with one of the children. That will avoid probate and the Estate Administration Tax, which is roughly $15,000.00 per one million of assets.

The next issue under consideration is whether that first step also included the intention to pass the value of the asset on to the brother or was he to share it with his sister.

That issue should be dealt with and specifically documented. On paper it says “all to my son”. Was that also part of the intention. In circumstances such as this, there is a presumption that the property will be held in trust on behalf of the mother. This is a “resulting trust” where there is no consideration and we have a close relationship between the parties (mother-son). The Supreme Court of Canada addressed this issue in a couple of cases Pecore and Madsen in 2007. Subsequent to that time, lawyers drafting documents have prepared a “Statement of intention” to clarify matters.

Brian Madigan LL.B., Broker

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