Norman v. Watch Tower Bible and Tract Society of Canada, 2013 BCSC 2099 Discusses a number of legal issues involving the simple question in law of ” what is a gift?”.
Case law and blogs such as this often discuss whether a donor made a gift or is the property transferred for no consideration held as a resulting trust by the recipient, but not much discussion occurs about what is a plain and simple gift.
The Watch Tower case was complicated by the fact that the deceased “gave” monies to his Church pursuant to a document described as a conditional loan”, and although Mr. Norman often used the words “conditional loan” to describe the arrangement, the Court concluded from a June 5, 2001 letter that he intended the defendant to acquire a proprietary interest in the funds immediately. This also had the effect of not making the document testamentary as it was intended by the donor to have immediate effect and to not be dependant upon his death for its ” vigour and effect”.
The court stated: a gift is by definition a voluntary transfer of property to another without consideration: McNamee v. McNamee, 2011 ONCA 533, paras. 23, 24, 29.
As such, it is my view that where the disposition is a gift, the lack of consideration will be immaterial to the question of whether the disposition is testamentary.