Hugginson v. Hugginson (2025 ONCA 902):
A recent decision of the Ontario Court of Appeal confirms a simple but powerful estates law principle:
- a gift is not a gift unless
- the donor clearly intended it, and
- it was completed during their lifetime.
- Good intentions, discussions, and “thinking about it” are not enough—particularly when an estate trustee claims a benefit.
Background
Two sisters became embroiled in litigation after their stepfather passed away. One sister (the appellant) had acted as the Attorney pursuant to a Power of Attorney and later as Estate Trustee.
After the stepfather’s death, she transferred $400,000 to herself, claiming it was intended as a lifetime gift.
The other sister challenged the payment and won at the Superior Court. The appellant appealed.
The Legal Test for Gifts
Ontario law requires three elements for a valid inter vivos gift (from McNamee v. McNamee):
- Clear intention to gift
- Delivery of the gift during lifetime
- Acceptance
Acceptance wasn’t disputed. The real issues were:
- Did the stepfather truly intend to gift $400,000?
- Was the gift actually completed before death?
The burden of proof was entirely on the appellant.
Why the Appeal Failed
The Court of Appeal upheld the trial judge’s decision and dismissed the appeal.
Key findings:
1. No Clear Gift Intention
The Court concluded there was no clear, continuing, and specific intention to gift $400,000. The best evidence of the stepfather’s state of mind was his November 30, 2022 letter, which said he might give money during his lifetime, and that if he did, it should not reduce inheritance shares.
“Might” is not intention. It confirmed possibility only, not commitment.
2. No Completed Delivery
There were no instructions to transfer funds before death.
The appellant even admitted she did not know if he had changed his mind.
You cannot “complete” a gift after someone has died.
3. Investment Advisor Notes Rejected
The appellant relied heavily on the investment advisor’s notes and later correspondence. The Court ruled:
- They were mostly inadmissible hearsay
- They failed to meet Evidence Act business record requirements
- Even if considered, they did not prove a definite authorization or completed transfer
4. Strong v. Bird Doctrine Didn’t Save the Claim
The appellant argued the Strong v. Bird principle: an imperfect lifetime gift can be perfected if the intended donee becomes executor and the intention continued until death.
This failed because:
- There was no continuing intention
- There was no specific gift amount confirmed
Without those elements, the doctrine does not apply.
Result
- Appeal dismissed
- $400,000 must be returned to the estate
- Appellant ordered to pay $7,000 in costs
Why This Case Matters
This decision is a strong reminder:
✔ Estate trustees must act with caution when benefiting themselves
✔ Courts require clear, cogent, and convincing evidence of gifts
✔ Discussions or preliminary planning are not enough
✔ Proper documentation and completed execution are essential
For families and advisors, the message is practical:
If someone intends to make a significant gift, do it properly, with clear instructions, documentation, and execution while alive.
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com