Gifts Made During Lifetime

Inter vivos gifts are gifts made by a person during his or her lifetime, as opposed to leaving gifts in a Will (inter vivos is Latin for “between the living”). Inter vivos gifts are sometimes disputed, with the allegation being the gift giver was “unduly influenced” by the recipient of the gift – often a family member, friend or caregiver. Under certain circumstances, there is a presumption the inter vivos gift was a result of undue influence.

When is there a presumption of Undue Influence?

In Goodman Estate v. Geffen (1991), the Supreme Court of Canada answered the question of what a plaintiff must establish in order to trigger a presumption of undue influence. Justice Wilson explained the first step is to examine the relationship between the donor and the recipient, and whether the “potential for domination inheres in the nature of the relationship itself” (para 43). The Court confirmed there are certain relationships, such as parent and child, which are recognized as supporting the presumption.

The next step is examining the nature of the transaction.  In the case of gifts (as opposed to commercial transactions), it is enough for the plaintiff to establish the presence of a dominant relationship (para 45).

Recently the Ontario Court of Appeal clarified in Morreale v. Romanino, (2017) “while the test embraces relationships that have been recognized as giving rise to the presumption, it is not enough to simply show that such a relationship exists. Even for such relationships, the presumption does not arise unless it has been established that there is the potential for one person to dominate the will of another.” The trial judge must “consider the whole of the relationship between the parties to see if there is the potential for domination rather than looking for a specific act of coercion or domination.” (para 23)

What happens once the Presumption is established?

Once the plaintiff has triggered the presumption of undue influence, the recipient of the gift “must establish on a balance of probabilities that the gift was the result of the transferor’s “full, free and informed thought” (para 46).

In order to do so, the recipient must present corroborating evidence, which “can be direct or circumstantial, and it can consist of a single piece or evidence or several pieces considered cumulatively” (Foley v. McIntyre, 2015) but evidence that the transferor received qualified, independent advice can be used to rebut the presumption.

What the cases are telling us, is that if you or someone you know is considering making a gift in his or her lifetime, they should obtain legal advice and clearly and substantively document your intention.

Related Posts


Introduction to Estate and Substitute Decision Planning

2 Minute Read  There is a lot more to estate planning than simply creating a Will or Power of Attorney. In today’s article, we outline all of the possible components that can be included within an estate and substitute-decision plan. In combination, these various components can work together to ensure our wishes are fulfilled during

Read More »

What is Elder Abuse?

2 Minute Read If you have an older adult in your life, such as a grandparent or an aging parent, it is important to raise self-awareness of elder abuse as it is often considered an underreported ‘hidden’ crime, many times occurring behind closed doors and at the hands of ‘trusted’ people. According to Elder Abuse

Read More »
Erin Lewis

What is Elder Law?

June 12, 2024 – 2 Minute Read In Ontario, there are almost 3 million older adults residing in the province, with less than 2 million adults becoming seniors in the next 10 years. As the population ages, it is increasingly important to raise awareness amongst seniors and their loved ones on how elder adults can

Read More »

Ontario’s Update Estate Laws

Last fall the Ontario government took steps to simplify the province’s estate laws. The changes took effect as of January 1, 2022, and are aimed to make the probate process more accessible. The good news:  the number of forms has been reduced from 58 to 23.  The forms are easier to understand and complete alongside

Read More »

I Just Bought a Condominium . . . Now What?

A condominium is a type of legal ownership where the property is divided between privately owned units and common elements. Each unit owner owns the unit as well as a proportion of common elements, which includes such things as hallways, lobbies and elevators and there are also “exclusive use common property elements,” such as balconies,

Read More »

Challenges to Testamentary Documents

Quite often we hear about someone’s Will being challenged.  The most common grounds being: proper execution; knowledge and approval of the contents of the Will; fraud; lack of testamentary capacity; and undue influence and suspicious circumstances. A person who wishes to challenge a Will as being invalid must file a Notice of Objection with the

Read More »
Scroll to Top