My colleagues, Diane Vieira and Karen Watters, Partners at de VRIES LITIGATION LLP, both wrote blogs on Buffa v. Giacomelli, 2025 ONSC 4024. Diane’s blog can be found here, and Karen’s blog can be found here. This matter was recently heard in the Court of Appeal in Buffa v. Giacomelli, 2026 ONCA 566.
Background
Alexander Buffa (“Alexander”) and Laura Giacomelli (“Laura”) were the children of Giuliana Buffa (“Giuliana” and the “Estate”, respectively) and Dr. Leonardo Buffa (“Leonardo”).
After Leonard died in December 2019, Alexander’s lawyer wrote a letter that challenged Giuliana’s capacity and objected to her acting as estate trustee of Leonard’s estate. Giuliana’s lawyer wrote a responding letter that asserted Giuliana had capacity and pointed out that Leonard’s assets were jointly owned with Giuliana and passed to her by right of survivorship. The application judge found that Giuliana and Alexander did not see or speak to each other after this point. Conversely, the application judge also found that Giuliana and Laura continued to share a close relationship.
After being diagnosed with breast cancer in January 2020, Giuliana directed TD Bank in writing to transfer her investment account to a new joint account with Laura (the “TD Investments”). Laura and Giuliana also opened joint bank accounts at TD and Scotiabank.
In March 2020, Giuliana designated Laura as the beneficiary of her RRIF and TFSA. In May 2020, Giuliana signed two “gift letters”. In the first letter, Giuliana instructed Laura to liquidate the TD Investments, RRIF and TFSA. She advised that the proceeds should be transferred into one of the joint accounts with Laura, and she wished to gift these funds to Laura. In the second letter, Giuliana instructed Laura to affect the sale of her condo, deposit the proceeds into one of their joint accounts and that Laura keep the funds as a gift. Laura subsequently withdrew the above-mentioned funds from the joint accounts.
The application judge found that while Giuliana faced health challenges, she enjoyed living independently and managed her own finances. She began showing signed of dementia in Fall 2021 (after the gifts were made). Giuliana died in December 2019.
Giuliana executed a will on November 8, 2018, which gave Alexander 45% of the Estate and gave 55% to Laura (the “Will“).
The Application
Alexander commenced an application that sought a declaration that the funds in the joint accounts held from December 16, 2019 to October 17, 2023 were subject to a resulting trust and formed part of the Estate, among other relief.
The application judge dismissed the application. While the inter vivos transfers appeared to conflict with the Will, the application judge found that the evidence demonstrated Giuliana’s “clear and unmistakable intention” to make such gifts to Laura. The application judge relied on the forms Giuliana signed to create the joint accounts; Giuliana’s letters that clearly stated her wishes; the strained relationship between Giuliana and Alexander; the close relationship of Giuliana and Laura; the lack of evidence to suggest that Giuliana lacked capacity to make the gifts; and the absence of evidence to support that Laura acted inappropriately to effect the gifts or that the transfers were done without Giuliana’s full approval. The application judge also found no evidence of undue influence such that Giuliana’s relationship with Laura was not one of dominance or dependency,
Therefore, the application judge found that Laura had successfully rebutted the presumption of resulting trust by demonstrating that Giuliana had “full, free and informed thought” to make the gifts.
The Appeal
Alexander appealed the decision. First, he claimed that the application judge misapplied the test for the presumption of undue influence and failed to consider whether Giuliana’s relationship with Laura had the potential for domination. The Court of Appeal did not accept this submission and highlighted that the application judge explicitly found there was no evidence of dominance or dependency in Giuliana’s and Laura’s relationship. Furthermore, the application judge had authority to consider how much weight to give the evidence when determining the facts. It was therefore acceptable for the application judge to find that Giuliana and Laura living in different cities refuted a relationship of dominance. Absent a legal error, the findings of the application judge were owed substantial deference.
Alexander also claimed that the application judge erred in finding that the presumption of resulting trust had been rebutted. Firstly, he submitted that the application judge conflated Giuliana’s motive in making the gifts with whether she actually had an intention to do so. While there can be a difference between an intention to make a gift and the underlying motive for doing so, the application judge considered the evidence of Giuliana’s relationships with her children, and found these dynamics informed Giuliana’s decision to give gifts only to Laura. Therefore, there was no conflation of motive and intent.
Secondly, Alexander claimed that the application judge did not consistently determine Giuliana’s intention at the appropriate time (which he says was at the time of delivery of the gift). The Court of Appeal disagreed and found that delivery of a gift occurs when the donor divests themselves of all power and control over the property and transfers it to the recipient. Creation of a joint account may constitute a valid gift of funds if that is the donor’s intention. Therefore, if a gift is intended, deposit of funds into a joint account is the “delivery” of the gift in which the donor divests the right to control the funds to the joint accountholder who has a right to make withdrawals. As Laura jointly held the account where the proceeds of the sale of the condo were deposited and Giuliana directed Laura to keep the proceeds via letter, Laura had a right to withdraw the funds. There was no evidence that Giuliana changed her mind about the gift between the time she wrote the letter and upon delivery of the gift to Laura (when the proceeds from sale were deposited in the joint account).
Takeaways
When a testator’s actions conflict with their intentions in their will, it is open for the Court to consider the surrounding circumstances. In this case, the relationships Giuliana had with her children played an important role in validating the inter vivos gifts.
