What Is a Gift?

What Is a GiftNorman 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.

 

 

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

More Posts - Website - Google Plus