We have already posted several blog articles on the issue of when is a gift not a gift. This even extends to the concept of beneficiary designations and while we will not repeat those concerns, we recommend those blog articles to our faithful readers.
The 3 PARTS OF A GIFT
As stated elsewhere, we know from the Ontario Court of Appeal’s important decision in McNamee v. McNamee that the requisite elements of a gift are the following:
1. The donor intended to make a gift without expecting anything in return.
2. Acceptance of the gift by the donee (the one on the receiving end).
3. An actual act of delivery or transfer of the property to complete the gift itself.
If any of these parts are missing, there is no gift, and the donee must return what they have received.
MAHAR & GIFTS
There is an important decision in family law titled Abdollah Pour v. Banifatemi. This is primarily a family law case, but the issues and important ingredients relating to a gift are front and center in this decision. It also involves a Mahar which is an Islamic marriage contract. In this case, the young couple married in 2012 and separated the following year. On the wedding day, the parents of the groom transferred a one-half interest in a house to the bride as part of the Mahar. The marriage failed, and the parents of the husband tried to take back the 50% interest, arguing that the Mahar was different from an irrevocable gift. The court looked at the matter closely and when it was all said and done felt indeed an irrevocable gift had been given and the Court of Appeal from whom a review was sought agreed.
MENTAL CAPACITY TO MAKE A GIFT
Another alternative in attempting to attack a gift is to say that the gift-giver aka the donor lacked the requisite mental capacity at the time. What is the test for capacity to make a gift? It is relatively simple. It is primarily:
1. The ability to understand the nature of the gift; and
2. The ability to understand the specific effect of the gift in the circumstances.
The court looks at the matter far more closely if the gift represents a significant value relative to the donor’s assets. In those cases, the test rises to the equivalent of testamentary capacity. In plain English, the same abilities that a person would be required to have from an intellectual capacity perspective to make a valid Will. Testamentary capacity law can be traced all the way back to the 1870 English case of Banks v Goodfellow.
Not simple and never assume a gift is a gift until a qualified lawyer has reviewed all the facts.