Save yourself a trip to court and be grateful for the gift you get

Joyce Blond Frank B.A., B.C.L., LL.M.

December, 2010

Under the law of Quebec, a gift is considered a contract under which the donor, or giver, transfers the ownership of property to someone else without getting anything in return.

A promise to give something is not a gift; the actual transfer of ownership must take place. If the promise is not fulfilled, the designated recipient of the gift (the donee) will have the right to claim damages. Where the transfer of ownership is conditional upon the death of the donor, it is called a gift mortis causa. Otherwise it is called a gift inter vivos. A gift mortis causa can only be made by a will or a marriage or civil union contract. Such a gift specified by any other means would not be binding.

Gifts inter vivos must be made by notarial deed unless possession of the property is actually transferred to the person receiving it.

Gifts mortis causa can be revoked at any time by the donor. A gift inter vivos can only be revoked in the case of ingratitude – where the donee “has behaved in a seriously reprehensible manner toward the donor.” This leaves it to the discretion of the judge who, when assessing the behaviour of the donee, will look at the nature of the gift, at the gender, age and means of the people involved and at the circumstances.

In one case, there existed a friendship between a young man and a much older woman. The woman gave the man money to purchase a car and condo. When she exhibited romantic behaviour toward him, he explained that there could never be a love relationship between them. The woman became jealous and they argued. The man, angry and frustrated, reacted inappropriately and forced the woman to kiss him.

The relationship deteriorated and the woman claimed back the $159,000 she had given him for the car and condo.

The trial judge considered the kiss an act of sexual aggression and granted the action. The court of appeal held that the order revoking a gift is of a penal nature. Even where a gift is given as the result of affection, the loss of that affection does not constitute ingratitude. For ingratitude to exist, there must be ill-will or malevolence. A spontaneous act resulting from anger will not be sufficient for the courts to revoke a gift. The courts will also take into account any provocation emanating from the donor.

Considering the relationship between the parties and the circumstances and impulsiveness of the kiss, the act of the young man did not constitute ingratitude, the judgment was reversed and the action of the woman to reclaim her gifts dismissed.

In another case, children sued their father’s wife to get back an amount given by the father to her a few months before his death. The wife and father had separated, but had reconciled when she was pregnant with a child from another man. The children claimed the return of the amount on the ground of ingratitude: They alleged offhand behaviour from the wife at the funeral home and her threat to throw their father’s ashes into the toilet. The judge, stating that ingratitude could only be established with seriously reprehensible behaviour, held that her actions at the funeral home, although not acceptable, were not directed at her late husband and did not constitute ingratitude. Also, the threat of disposing of the ashes arose from spontaneous anger resulting from learning of a change in the will and being told that her husband no longer loved her.

Her actions could be explained by these special circumstances.

In a recent case, the Quebec Court of Appeal applied the concept of ingratitude in deciding that the actions of a father were seriously reprehensible. He had used his deceased daughter’s money for his own purposes while administering her assets and had falsified reports to the office of the Public Curator to conceal what he had done. The errors found in his administration were not just the result of a slip-up, but constituted a fraudulent breach of trust that he had deliberately attempted to hide in his reports. The Court of Appeal agreed with the Superior Court that he had acted in a seriously reprehensible manner by deliberately mismanaging his daughter’s funds. He was ordered to reimburse her estate.

It is the judge alone who has the power to appreciate the facts and decide whether those facts constitute ingratitude.

If you are ever tempted to go to court to revoke a gift on the ground of ingratitude, it would be wise to remember that your idea of what constitutes ingratitude might differ from that of the court. And if you are the recipient of someone else’s generosity, try to remain grateful.