What are the validity criteria of a gift?

Gift is a contract by which a person, the donor, transfers ownership of the property by gratuitous title to another person, the donee; a dismemberment of the right of ownership, or any other right held by a person, may also be transferred by gift.

Gifts may be inter vivos or mortis causa.[1]

A gift requires the presence of two elements: the material element and the psychological element.[2] Whoever claims that a legal act is a gift has the burden of proving it.[3] A gift may never be presumed.[4]

So what are the criteria to prove in order to be able to claim a gift?

It is article 1824 of the Civil Code of Québec which tells us the procedure to follow[5]:

The gift of movable or immovable property is made, on pain of absolute nullity, by notarial act en minute, and shall be published.

These rules do not apply where, in the case of the gift of movable property, the consent of the parties is accompanied by delivery and immediate possession of the property.

The general rule is set out in the first paragraph of article 1824 C.C.Q. In fact, the law provides that to be valid, a donation must be notarized and published, on pain of absolute nullity. This rule applies by default to all movable and immovable property.

However, the second paragraph of article 1824 C.C.Q. provides an exception. The exception may apply only in the presence of a gift of movable property, provided that reciprocal consents of the donor and the donee are accompanied by delivery and immediate possession of the property. This is what the authors describe and comment on under the term “manual gift”.[6]

A manual gift, to be valid, must involve the concurrence of the wills to give and receive joined to the tradition of the transmitted property. The tradition of the transmitted property essentially means that there is immediate transmission or “from hand to hand”.[7]

Here are a few examples to simplify.

The person who gives a $20 bill to his brother from hand to hand is probably the simplest example of a valid manual gift. In fact, the donor intends to divest it definitively and irrevocably, the donee intends to receive the $20 bill and the transmission of the property is done immediately and without hindrance.

In a different case, Rita cares for her sick sister Yvette. Yvette is still lucid but remains in the hospital. So, Rita deals with her sister’s financials. The challenge, in this case, was at the level of a donation of $5,000 that Yvette made to her sister before her death. Yvette would have told her: Take $5,000 for yourself since you took such good care of me. The heirs dispute this gift on the grounds that there was no immediate delivery of the property. Despite the fact that Rita had access to her sister’s bank accounts and despite Yvette’s genuine intention to remit her the sum, the Court ruled that the criterion of immediate and unhindered transmission was not met and therefore invalidated the gift. The judge submits that in order to fulfill this condition, Mrs. Yvette had to have $5,000 in hand and give them to Rita directly.[8]

The delivery of the movable property may be made by mandatary to himself if all the other criteria are met.[9]

In summary, in order to claim a manual gift, the donee will have to prove the following:

  1. The intention to give (cannot be presumed and must result, at the very least, from sufficiently precise and concordant facts to establish the presumption);
  2. The intention to receive;
  3. Tradition
    1. dispossession or divestiture;
    2. succeeds the delivery of the property;
  4. Gift of a movable;

 

[1] Art. 1806 C.c.Q.

[2] Martin c. Dupont, 2016 QCCA 475

[3] Ibid

[4] Evrard c. Lefrançois, 2001 CanLII 32780 (QC CA)

[5] Art. 1824 C.c.Q.

[6] Paré c. Paré (Succession de) 2014 QCCA 1138

[7] Spina c. Sauro, 1990 CanLII 3236 (QC CA)

[8] Bilodeau (Succession de) 2006 QCCQ 16846

[9] Senéchal-Charbonneau c. Beaudoin, J.E. 96-707

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The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.