Two Status To Consider
Date: 14 Mar, 2022| Author: Fred Streiman

Some statutory considerations for setting aside a gift a.k.a. actual legislation and not judge made law, are set out below.  There are a number of actual Statues that have a serious effect on gifts and their validity, and we summarize two of them as follows.

1. Fraudulent Conveyances Act.  If a gift is given with the intent to defeat or defraud creditors those gifts are void. An example of this is in the case of Habibi v Arabi  which was an example in a family law case in which approximately 15 million US dollars was transferred by the husband to his father ostensibly as a gift.   Sorry the money goes back and you will have to share it with your ex wife.

2. Substitute Decisions Act. The Substitute Decisions Act is the go-to law when one deals with Powers of Attorney.  It is the Substitute Decisions Act that creates Powers of Attorney. One simply needs to look at sections 2(3) and 2(4) of the Act.  One can start with the premise that everybody has capacity to take any of their actions unless there are reasonable grounds to believe otherwise. Alternatively, if one is subject to a guardianship of property, the onus of proof that the recipient or a person who entered into a contract with them had capacity is not there starting one year before the creation of the order of guardianship. In other words, the Act presumes that everybody has the ability to make a gift or contract unless an order for guardianship exists.  The presumption of capacity, that is that you knew what you were doing, is eliminated for a period starting one year before the finding of guardianship.