Vaccaro v. Vaccaro[1], 2025 ONSC 6521, involved a dispute among siblings over whether the transfer of property was a valid gift and whether the sale proceeds from the property were subject to a resulting trust. The court determined that the funds should not be distributed among the siblings, as the issues needed to be resolved in the estate proceeding with all necessary parties present.
Facts
Giuseppina (the “Deceased”) was married to Angelo, who had predeceased her in 2017. On May 16, 2021, the Deceased passed away, and was survived by her three children, Ross (the “Applicant”), Lillo, and Josie (collectively the “siblings”). The Deceased’s son, Joe, passed away in 2015, but he was survived by his own children.[2]
The Deceased and Angelo owned two properties in Richmond Hill. A residence located at 88 Pathlane Road (the “Pathlane Property”) and an investment property located at 583 16th Avenue (the “Investment Property”).[3]
In 2017, following Angelo’s passing, his assets passed to the Deceased, as both spouses had mirror wills. The mirror Wills left the residue to their four children in equal shares, with Joe’s share left to a discretionary trust for all ten of their grandchildren.[4]
By 2021, the Deceased had become “mentally incapable,”[5] and Josie, acting pursuant to a power of attorney for property executed by the Deceased on March 31, 2021, transferred title of the Pathlane Property from the Deceased alone into joint tenancy with her three surviving children.[6] The siblings alleged that the purpose of this transfer was to save on probate fees.[7]
In February of 2023, the siblings sold the Pathlane Property resulting in net proceeds of approximately $2.67 million, which were held in trust by the siblings’ counsel, Mr. Fienberg, who was also the Deceased’s drafting solicitor, following the registration of a survivorship application.[8] On closing, Lillo and Josie directed that the sale proceeds were not to be released, asserting that the distribution must first account for loans of $100,000 given to the Applicant and Joe during the Deceased’s lifetime.
On April 3, 2023, the Applicant demanded his one-third share of the sale proceeds but was told by Mr. Fienberg that unanimous consent from the surviving children was required.[9]
In July of 2023, the Applicant commenced an application seeking equal distribution of the sale proceeds to the Deceased’s three children, the registered survivors of the Pathlane Property. The matter was delayed for several reasons including the later participation of certain grandchildren and Joe’s estate (through his widow as estate trustee). The court noted that the Deceased’s estate was never added as party.[10]
The evidentiary record consisted primarily of the Applicant’s affidavit and evidence from Mr. Feinberg limited to conveyancing matters. Josie appeared only in her personal capacity, and not in her capacity as the sole estate trustee of the Deceased’s estate.[11]
The Applicant contended that Josie had authority pursuant to the Deceased’s power of attorney for property to effect the gift, such that each sibling owned one-third outright. Joe’s estate took a similar position to the Applicant regarding the sale proceeds.[12]
Josie argued that the transfer of the Pathlane Property in 2021 was done for probate planning, and was not a gift, therefore the proceeds were held in trust for the Deceased’s estate. [13]
Issues
The court was tasked with determining two primary issues which was whether the transfer of the Pathlane Property in 2021 to joint tenancy constituted a gift and whether the Applicant’s share of the proceeds should’ve been paid out immediately. [14]
The court noted that these issues were challenging due to the lack of a complete evidentiary record and the absence of the Deceased’s estate as a party to the proceedings.[15]
Analysis
Justice Lemay highlighted the complexity of the legal issues involved, noting that a full interpretation of the Deceased’s power of attorney for property and the Deceased’s Last Will and Testament was necessary.[16]The court identified several reasons to defer a determination on the validity of the transfer of the Pathlane Property or the existence of a resulting trust, in the “absence of a complete record”[17]:
Legal Complexity:
As briefly noted above, the issues required a comprehensive analysis of the Deceased’s Last Will and Testament, as well as the fiduciary obligations surrounding a power of attorney and their obligations relating to the “disposition of property”.[18] These factors necessitated a complete record before the court.
Potential Challenges:
The Deceased’s grandchildren intended to challenge the distribution of the proceeds of the Pathlane Property, as they intended to argue that the transfer of the Pathlane Property likely altered the Deceased’s testamentary intentions.[19]
Significant Stakes:
The high value of the property meant that each grandchild’s potential interest was substantial, amounting to a share of $60,000, each.[20]
Procedural Fairness:
The court was concerned about the fairness of using any ruling in this case to preclude future litigation on related properties. Accordingly, the “gift” issue must be resolved in the estate proceeding, by motion for directions if necessary.[21]
For these reasons, the court refused to order the payout of the proceeds of sale of the Pathlane Property and directed that the issues be resolved in the estate litigation. The court encouraged the parties to attend mediation to avoid prolonged litigation that may lead to regret by the parties later on.[22]
Concluding Remarks:
This decision is yet another caution against using joint tenancy “to avoid probate” where the donor lacks capacity and the transaction may alter the Deceased’s testamentary intentions. Individuals should ensure the donor’s intention is contemporaneously documented.
—
[1] Vaccaro v. Vaccaro, 2025 ONSC 6521
[2] Ibid at para 5.
[3] Ibid at para 6.
[4] Ibid at para 8.
[5] Ibid at para 1
[6] Ibid at para 5.
[7] Ibid at para 18.
[8] Ibid at para 15
[9] Ibid at para 16
[10] Ibid at para 28
[11] Ibid at para 34
[12] Ibid at para 35.
[13] Ibid at para 22
[15] Ibid at para 38
[16] Ibid at para 43.
[17] Ibid at para 51.
[18] Ibid at para 50
[19] Ibid at para 52.
[20] Ibid at para 53
[21] Ibid at para 54.
[22] Ibid at para 68.
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Written by: Gabriella Banhara
Posted on: December 22, 2025
Categories: Commentary, WEL Newsletter
Vaccaro v. Vaccaro[1], 2025 ONSC 6521, involved a dispute among siblings over whether the transfer of property was a valid gift and whether the sale proceeds from the property were subject to a resulting trust. The court determined that the funds should not be distributed among the siblings, as the issues needed to be resolved in the estate proceeding with all necessary parties present.
Facts
Giuseppina (the “Deceased”) was married to Angelo, who had predeceased her in 2017. On May 16, 2021, the Deceased passed away, and was survived by her three children, Ross (the “Applicant”), Lillo, and Josie (collectively the “siblings”). The Deceased’s son, Joe, passed away in 2015, but he was survived by his own children.[2]
The Deceased and Angelo owned two properties in Richmond Hill. A residence located at 88 Pathlane Road (the “Pathlane Property”) and an investment property located at 583 16th Avenue (the “Investment Property”).[3]
In 2017, following Angelo’s passing, his assets passed to the Deceased, as both spouses had mirror wills. The mirror Wills left the residue to their four children in equal shares, with Joe’s share left to a discretionary trust for all ten of their grandchildren.[4]
By 2021, the Deceased had become “mentally incapable,”[5] and Josie, acting pursuant to a power of attorney for property executed by the Deceased on March 31, 2021, transferred title of the Pathlane Property from the Deceased alone into joint tenancy with her three surviving children.[6] The siblings alleged that the purpose of this transfer was to save on probate fees.[7]
In February of 2023, the siblings sold the Pathlane Property resulting in net proceeds of approximately $2.67 million, which were held in trust by the siblings’ counsel, Mr. Fienberg, who was also the Deceased’s drafting solicitor, following the registration of a survivorship application.[8] On closing, Lillo and Josie directed that the sale proceeds were not to be released, asserting that the distribution must first account for loans of $100,000 given to the Applicant and Joe during the Deceased’s lifetime.
On April 3, 2023, the Applicant demanded his one-third share of the sale proceeds but was told by Mr. Fienberg that unanimous consent from the surviving children was required.[9]
In July of 2023, the Applicant commenced an application seeking equal distribution of the sale proceeds to the Deceased’s three children, the registered survivors of the Pathlane Property. The matter was delayed for several reasons including the later participation of certain grandchildren and Joe’s estate (through his widow as estate trustee). The court noted that the Deceased’s estate was never added as party.[10]
The evidentiary record consisted primarily of the Applicant’s affidavit and evidence from Mr. Feinberg limited to conveyancing matters. Josie appeared only in her personal capacity, and not in her capacity as the sole estate trustee of the Deceased’s estate.[11]
The Applicant contended that Josie had authority pursuant to the Deceased’s power of attorney for property to effect the gift, such that each sibling owned one-third outright. Joe’s estate took a similar position to the Applicant regarding the sale proceeds.[12]
Josie argued that the transfer of the Pathlane Property in 2021 was done for probate planning, and was not a gift, therefore the proceeds were held in trust for the Deceased’s estate. [13]
Issues
The court was tasked with determining two primary issues which was whether the transfer of the Pathlane Property in 2021 to joint tenancy constituted a gift and whether the Applicant’s share of the proceeds should’ve been paid out immediately. [14]
The court noted that these issues were challenging due to the lack of a complete evidentiary record and the absence of the Deceased’s estate as a party to the proceedings.[15]
Analysis
Justice Lemay highlighted the complexity of the legal issues involved, noting that a full interpretation of the Deceased’s power of attorney for property and the Deceased’s Last Will and Testament was necessary.[16]The court identified several reasons to defer a determination on the validity of the transfer of the Pathlane Property or the existence of a resulting trust, in the “absence of a complete record”[17]:
Legal Complexity:
As briefly noted above, the issues required a comprehensive analysis of the Deceased’s Last Will and Testament, as well as the fiduciary obligations surrounding a power of attorney and their obligations relating to the “disposition of property”.[18] These factors necessitated a complete record before the court.
Potential Challenges:
The Deceased’s grandchildren intended to challenge the distribution of the proceeds of the Pathlane Property, as they intended to argue that the transfer of the Pathlane Property likely altered the Deceased’s testamentary intentions.[19]
Significant Stakes:
The high value of the property meant that each grandchild’s potential interest was substantial, amounting to a share of $60,000, each.[20]
Procedural Fairness:
The court was concerned about the fairness of using any ruling in this case to preclude future litigation on related properties. Accordingly, the “gift” issue must be resolved in the estate proceeding, by motion for directions if necessary.[21]
For these reasons, the court refused to order the payout of the proceeds of sale of the Pathlane Property and directed that the issues be resolved in the estate litigation. The court encouraged the parties to attend mediation to avoid prolonged litigation that may lead to regret by the parties later on.[22]
Concluding Remarks:
This decision is yet another caution against using joint tenancy “to avoid probate” where the donor lacks capacity and the transaction may alter the Deceased’s testamentary intentions. Individuals should ensure the donor’s intention is contemporaneously documented.
—
[1] Vaccaro v. Vaccaro, 2025 ONSC 6521
[2] Ibid at para 5.
[3] Ibid at para 6.
[4] Ibid at para 8.
[5] Ibid at para 1
[6] Ibid at para 5.
[7] Ibid at para 18.
[8] Ibid at para 15
[9] Ibid at para 16
[10] Ibid at para 28
[11] Ibid at para 34
[12] Ibid at para 35.
[13] Ibid at para 22
[15] Ibid at para 38
[16] Ibid at para 43.
[17] Ibid at para 51.
[18] Ibid at para 50
[19] Ibid at para 52.
[20] Ibid at para 53
[21] Ibid at para 54.
[22] Ibid at para 68.
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