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The Gift That Keeps On Giving

The Gift That Keeps On Giving

Many of the rules in the Civil Code of Quebec governing liberalities were made for policy reasons. Once such example is a gift mortis causa, which is null unless made in a marriage or civil union contract or can be upheld as a legacy. A gift is presumed to be mortis causa if made during the deemed mortal illness of the donor, whether or not death follows. There are sound policy reasons for this rule. If someone believes her death is imminent, she may be vulnerable to undue influence or fits of uncharacteristic generosity. The prohibition is intended to protect her from such risks.

But what happens to the gift if the donor recovers from his mortal illness? The Court of Appeal examined this question in Desrochers c. Succession de Desrochers, 2018 QCCA 466.

The facts are relatively simple. Gerard and Rita Desrochers had three children: Annette, Andrée and Richard. In July 2012, Gerard was hospitalised with renal failure and was considered terminally ill. His only option was to undergo a risky surgical procedure. Two days before the surgery, Gerard gave Andrée a cheque for $150,000. He survived the surgery and recovered. After his recovery, Andrée asked him if he wanted to take back the gift, he said no but he did ask her to give him back $10,000, which she did. In January 2013, Rita died and Gerard became the liquidator of her estate. In June 2013, Gerard died and Andrée became the liquidator of his estate. Unfortunately, in September 2013, Andrée died suddenly and her sister Annette, the appellant in this case, replaced Andrée as liquidator of Gerard’s estate. Annette learned of the gift made to Andrée the previous July. She instituted proceedings against Andrée’s estate to have the gift declared null as being a forgery or a gift mortis causa. The only issue on appeal was whether it was a gift mortis causa.

At issue was the interpretation of Article 1820 CCQ:

1820. A gift made during the deemed mortal illness of the donor is null as having been made mortis causa, whether or not death follows, unless circumstances tend to render it valid.

Nevertheless, if the donor recovers and leaves the donee in peaceable possession for three years, the nullity is covered.

The Court had to determine whether there were circumstances to rebut the presumption that the gift was null. Article 1808 CCQ defines a gift mortis causa as “one whereby the divesting of the donor remains conditional upon his death and takes place only at that time”. So, was Gerard motivated by something other than his imminent death when he gave Andrée $150,000?

Annette argued that the words “unless circumstances tend to render it valid” only referred to circumstances that existed prior to or contemporaneous with the gift and the second paragraph of Article 1820 established the only situation in which circumstances occurring after the gift could be considered when analyzing its validity. The Court held that neither the text of the provision nor any particular policy reason justified this restrictive interpretation. Accordingly, statements made by Gerard after he recovered were admissible to determine his intention.

The Appellant’s son, who was close to his grandparents, testified that his aunt Andrée “faisait absolument tout” for her parents. His grandparents “avait une confiance absolue avec Andrée, c’est sûr”. In addition, Andrée’s son testified that Gerard told him he made the gift because Andrée had taken care of Gerard and Rita and that he wanted Andrée to continue to do so. Andrée’s son also testified that he had asked Gerard if he wanted his mother to give back the money and Gerard had said no.

The Court therefore dismissed the appeal, holding that Gerard’s intention was to thank Andrée for her care and that the gift was not the result of his fear of his imminent death.

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