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The recent case of McMurtry V McMurtry (2016 ONSC 2853) highlights the importance of proper documentation of a gift.
The wife of the deceased claimed that she was the owner of certain shares of a family corporation (worth several million dollars) that had belonged to her late husband. She argued that the shares had passed to her as residuary beneficiary of the estate. However, the son objected and alleged that the deceased had completed an inter vivo gift to him of the shares in question. Therefore, the onus was on the son to prove that there was a gift of the shares. This would entail rebutting:
The court stated that, where a parent is alleged to have gratuitously transferred property to an adult child, the analysis required is as follows:
The corroborating evidence to refute the existence of a resulting trust can be direct or circumstantial. The Court found that the deceased did not make a gift of the shares to his son and as such the shares were included in the estate.
Litigation can be avoided through proper documentation of a gift.