Endorsement

Overview

The Applicant, Heather Ann Hugginson, seeks a Declaration that the $400,000 inter vivos gift allegedly given by the deceased, Glenn Poole, to the Respondent, Sandra Hugginson, is invalid and an Order that the $400,000 be returned to the Estate.

The Applicant submits that the Respondent has failed to prove the deceased’s specific intent to make this gift and has failed to prove that the deceased gave up sufficient care and control of the $400,000 to satisfy the delivery of this alleged gift.

The Respondent submits that the gift was completed, that Glenn’s intention to make the gift was consistent, and he did everything in his power to ultimately deliver the gift. She contends that the funds were properly vested in her, and seeks a Declaration that the gift in question was a valid inter vivos gift even though it was not completed until after the donor was deceased.

Background

The parties are generally agreed as to the salient facts of this matter. They differ as to the appropriate interpretation at law.

The Applicant, Heather Ann Hugginson (“Heather”) is the stepdaughter of the deceased, Glenn Poole (“Glenn”), and one of the beneficiaries named in the Last Will and Testament of Glenn Poole dated August 21, 2012 (the “Will”). The Respondent, Sandra Hugginson (“Sandra”) is Heather’s sister and stepdaughter of Glenn, as well as the Estate Trustee of the Estate of Glenn Poole (the “Estate”), pursuant to the Will. Sandra was also appointed as Glenn’s Attorney for Property and Personal Care.

Glenn’s wife Evelyn, the mother of Sandra and Heather, passed away in August of 2022. Due to Glenn’s mobility issues, he resided at a long-term care facility Lanark Lodge (“Lanark”) from the Spring of 2022 up to his death on December 26, 2022. Before residing at Lanark, Glenn resided at a nursing home beginning in November 2021.

Due to Glenn’s health and age, he did not use a computer and had a hard time making phone calls. If Glenn ever needed to make a call, or if anyone needed to call him, this would be done through Sandra or Lanark.

Glenn’s investment advisor Tracey Greenwood (“Tracey”) from IG Wealth Management (“IG Wealth”) knew that Sandra was Glenn’s Power of Attorney and executor of the Estate, and IG Wealth was aware Sandra was the Estate Trustee of the Estate.

The Alleged Gift

In early September 2022, Glenn asked Sandra to arrange a meeting with Tracey. Sandra says it was because Glenn wanted to gift her a sum of money in the amount of $400,000 (the “Gift”). After Sandra emailed Tracy, a meeting between Tracey and Glenn occurred on September 15, 2022, to discuss the Gift. Sandra was not part of the meeting.

In the meeting, no specific instructions or amount of the Gift were discussed between Tracey and Glenn. After the meeting, Tracy communicated to Sandra that she would need to speak with Glenn again to get instructions on the Gift. On October 12, 2022, Tracy emailed Sandra and recommended that Glenn speak with a lawyer about the Gift.

On November 2, 2022, Glenn met with his lawyer Scott Hughes to discuss the Gift. Sandra was not involved in the meeting between Glenn and Mr. Hughes.

Shortly after this meeting, Glenn’s lawyer emailed Sandra indicating he would prepare a letter outlining Glenn’s intentions (the “Gift Letter”). The Gift Letter was signed by Glenn on November 30, 2022, and addressed to Sandra. No specific intention to make the Gift or specification of an amount was included in the Gift Letter.

On December 22, 2022, after receiving the Gift Letter, Tracey advised Sandra again that she would need to meet with Glenn to get his instructions for the Gift. Tracey was not able to meet with Glenn, as Glenn passed away on December 26, 2022.

At the time Glenn passed away, no transfer of money from Glenn to Sandra had been made.

In cross-examination, Sandra admitted she did not know for certain what Glenn’s intention was regarding the Gift or a transfer of money.

The Gift Transfer

On July 28, 2023, Sandra received correspondence from IG Wealth advising her that IG Wealth would facilitate the transfer of $400,000 after Sandra signed and returned a Full and Final Release. Included in the email from IG Wealth was a without prejudice letter summarizing IG Wealth’s position on the Gift (the “IG Letter”). After signing the Full and Final Release, Sandra transferred the $400,000 into her personal investment accounts.

No issue is raised by the Applicant as to Glenn’s capacity to make a gift. There is no allegation that Glenn did not understand the consequences of making a gift, or was unduly influenced to make one.

Issues

The issues in this matter for the Court to determine are:

1. Whether the gift of $400,000 is a valid inter vivos gift made by Glenn to Sandra?
2. If Glenn’s gift to Sandra was imperfect, was it subsequently perfected when Sandra became his Estate Trustee?
3. What weight, if any, should the evidence from Sandra regarding IG Wealth’s investigation and Glenn’s intention regarding the Gift have?

Law and Analysis

Issue 1: Was there a valid inter vivos gift?

Three elements must be satisfied in order for an inter vivos gift to be valid: a specific intention to make a gift by the donor, delivery of the gift, and acceptance by the donee: McNamee v. McNamee, 2011 ONCA 533, para 43.

The recipient of the gift bears the onus of establishing all three elements of an inter vivos gift: Carvalho v. Verma, 2024 ONSC 1183, para 50.

The Court must engage in a contextual analysis, weighing all the available evidence in order to ascertain, on a balance of probabilities, the donor’s actual intention with respect to making a gift: Pecore v. Pecore, 2007 SCC 17, para 44.

Sandra has failed to prove Glenn intended to make the Gift

In determining intent, the Court must examine the balance of the evidence to determine what the intention was with respect to the gift. It is specifically the intention of the transferor that is relevant: MacIntyre v. Winter, 2021 ONCA 516, para 24. This requires clear, convincing and cogent evidence that there was an intention to make a gift: Walker v. Faarsijani, 2021 ONSC 5571, para 19.

It is the transferor’s actual intention at the time of transfer that is the critical consideration: Rascal Trucking Ltd. v. Nishi, 2013 SCC 33, para 41.

I agree with the submission of the Applicant that this gift fails at the first element of the test because there is no clear evidence of what Glenn’s actual intention surrounding the Gift was and further, no clear evidence as to the amount of any Gift. In support of proving Glenn’s intention, Sandra relies on essentially three things: the September meeting, the Gift Letter, and the IG Letter.

The only evidence regarding the September meeting is from Tracey’s notes contained in Sandra’s affidavit. Tracey’s notes do not make any reference to a specific intention of Glenn to make a Gift, or even a reference to a specific amount.

The Gift Letter also does not help Sandra’s claim. The letter, dated November 30, 2022, addressed to Sandra and signed by Glenn, stated:

I spoke with my lawyer, Scott Hughes, on November 2, 2022.

I told him that in addition to a share of my estate, I may also leave you a gift of money while I am alive as a thank you for everything you have done for me. I asked him to prepare this letter for my signature to give to you and a copy to go to him to put with my Will. I do not want your share of my estate reduced if I do end up giving you money while I am alive.

This Gift Letter is the only direct evidence of Glenn’s intention before the Court. It provides no confirmation of Glenn’s settled intention to make the Gift or for what amount. The Gift Letter demonstrates that Glenn intended to possibly leave Sandra a gift of money. It stated “I may also leave you a gift of money while still alive”, and “I do not want your share of my estate reduced if I do end up giving you money while I am alive” (emphasis added). This remained a contingent possibility.

The final piece of evidence Sandra relies upon in support of demonstrating Glenn’s intention is the IG Letter. However, this letter is provided Without Prejudice and includes the requirement for Sandra to sign a Full and Final Release. IG Wealth was not making any specific finding regarding the Gift.

The Respondent submits that Tracey’s caution, and IG Wealth Management’s delay in actioning what they said were Glenn’s instructions, should not be construed as evidence of a lack of clarity in those instructions. I do not agree.

Sandra has failed to provide clear, convincing, and cogent evidence of Glenn’s intention to make the Gift. She has also admitted during cross-examination that she did not truly know what Glenn’s intention was.

Sandra has failed to prove that Glenn delivered the Gift to Sandra

Absent actual physical transfer of the subject matter of a gift, in some circumstances constructive delivery will suffice. However, in those cases, the donor must divest and give up all control over the substance of the gift: Teixera v. Estate of Markgraf et al., 2017 ONCA 810, paras 42-43. In other words, the donor must have done everything necessary and in his power to affect the transfer of the property. An incomplete gift is nothing more than an intention to gift: Kavanagh v. Lajoie, 2014 ONCA 187, para 13.

Even if Sandra proved it was Glenn’s intention to make the Gift, this Gift is incomplete because it was not delivered to Sandra prior to Glenn’s death. Further, Glenn had not given up complete control of the Gift. Glenn did not provide IG Wealth any written authorization to complete the Gift before his death. There is also no evidence that he provided verbal authorization regarding the Gift to IG Wealth. Even if Glenn had, this would not meet the requirement needed to divest all control over the Gift.

Issue 2: If Glenn’s Gift to Sandra was imperfect, was it subsequently perfected when Sandra became his Estate Trustee: Applicability of the rule in Strong v. Bird

The Respondent submits that if Glenn’s gift to Sandra was imperfect, it was subsequently perfected when Sandra became his Estate Trustee.

In Strong v. Bird (1874), L.R. 18 Eq. 315, Sir George Jessel held that a testator, having manifested an intention in his lifetime to forgive a debt, which continued unchanged down to his death, and having appointed the debtor his executor, the debt having been by this act extinguished at law, equity would regard the gift as complete. This rule had been expanded incrementally to apply to a gift of specific chattel, if it was proved to be the intention to give that specific chattel continuing down to the testator’s death: Morton v. Brighouse, para 3.

Sandra’s position that the act of her being appointed the Estate Trustee of Glenn’s Estate completes the Gift relies on the rule in Strong v. Bird. Sandra submits that Glenn intended to make a gift of $400,000 to her and that Glenn’s intention survived until the date of his death, and that on its facts the present case falls squarely within the well-established parameters of Strong v. Bird. The Applicant disagrees.

Sandra points to Rennick v. Rennick et al. as an application of this rule. The question to be determined in Rennick was whether the nephew of the deceased had been gifted monies he owed to the deceased under an agreement of purchase and sale for land. In 1955, the deceased entered into a written agreement with his nephew to sell a parcel of farmland to him in exchange for $14,400. $1,000 was to be paid in cash (but never was) and the balance was to be paid in crop payments. Later that year, the nephew offered the proceeds of his crop share to the deceased. The deceased refused to accept payment and told his nephew he was not required to pay anything. The deceased died in 1957 with a Will appointing his nephew as one of his estate trustees. The trial judge found that the deceased intended to make a gift to the nephew and never abandoned that intention before his death. The gift, which would have otherwise been imperfect, was perfected when the nephew became one of his executors. The Saskatchewan Court of Appeal upheld the decision.

Rennick is distinguishable on its facts from the case before this Court. It involved a forgiveness of debt, not a gift of money.

Sandra’s position is an attempt to expand the rule outlined in Strong v. Bird past what the rule originally stood for in equity. First, for the rule in Strong v. Bird to apply, Sandra must prove a continuing intention of Glenn to give this Gift up to his death, when, as stated above, she cannot even prove any specific intention about this Gift. Second, the position Sandra takes falls squarely within what the Supreme Court of Canada in Morton v. Brighouse was faced with and declined to adopt. The Supreme Court confirmed that only in situations where there is evidence of specific intention to gift a specific piece of personal property, continuing up to death, would an imperfect gift be perfected if the donee is appointed the executor.

As Sandra cannot prove Glenn’s specific intention to gift her a specific piece of Glenn’s property or even that there was any intention continuing up to death, I find that the rule in Strong v. Bird has no application to the facts of this case. It does not apply to perfect and complete the gift.

Issue 3: Admissibility of Glenn Poole’s file with IG Wealth Management

I agree with the submission of the Applicant that the evidence from Sandra at Exhibit “S” of her Affidavit sworn July 18, 2024 regarding IG Wealth’s investigation and Glenn’s intention regarding the Gift, should have limited weight. Section 13 of the Evidence Act, RSO 1990, c E.23, addresses the admissibility of evidence regarding statements made by deceased persons. It requires that, in an action by or against a deceased’s estate, a living person’s evidence must be corroborated by some other material evidence. This addresses the obvious disadvantage faced by the dead: they cannot tell their side of the story or respond to the living’s version of events. The corroboration required by s. 13 must be evidence independent of the evidence of the interested party showing or indicating that his/her evidence on a material issue is true. The corroborating evidence can be either direct or circumstantial. Any evidence put forth by Sandra in support of Glenn’s intention to Gift her $400,000 must be viewed in light of section 13. The evidence of IG Wealth, specifically Tracey’s notes from the meeting and the IG Wealth Letter, must also be given limited weight as hearsay. No one within IG Wealth provided affidavit evidence in support of Sandra’s position.

The Respondent contends that Tracey’s notes are admissible as a Business Record under s.35 of the Evidence Act, as a record made in the usual course of business, of an act, transaction, occurrence, or event, made contemporaneously or within a reasonable time thereafter. The Applicant disputes this, submitting that for a business record to be admissible under s.35 of the Evidence Act, it cannot be opinion, diagnosis, impression, history, summary or recommendation: Lumberjacks Tree Service v. 407 East Construction General Partnership, 2024 ONSC 1744, para 15.

I agree with the Applicant’s submission. Opinions contained in business records or recorded hearsay from third parties who are not under a business duty to report the information are not admissible: DeGiorgio v. Degiorgio, 2020 ONSC 1674, paras 50-51.

Conclusion

Sandra has not satisfied the onus on her to provide clear, convincing and cogent evidence to establish a specific intention to make the Gift by Glenn as the donor, or that delivery of the Gift was complete. There was not a valid inter vivos gift. The rule in Strong v. Bird does not apply to perfect and complete the Gift. The Application will be granted.

Order

1. The Court Declares that the $400,000 transferred to Sandra was not a valid inter vivos gift; and,
2. The Court Orders that the Respondent return the $400,000 to the Estate.

Costs

The parties are encouraged to agree upon appropriate costs. If the parties are not able to agree on costs, they may make brief written submissions to me (maximum three pages double-spaced, plus a bill of costs) by email to my judicial assistant at mona.goodwin@ontario.ca and to Kitchener.SCJJA@ontario.ca. The Applicant may have 14 days from the release of this decision to provide her submissions, with a copy to the Respondent; the Respondent a further 14 days to respond, with a copy to the Applicant; and the Applicant a further 7 days for a reply, if any. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves. If I have not received any response or reply submissions within the specified timeframes after the Applicant’s initial submissions, I will consider that the parties do not wish to make any further submissions and will decide on the basis of the material that I have received.

M. Gibson

Date: March 20, 2025