Donative intent is central to the law of gifts, particularly when a gratuitous transfer is disputed. While determining whether a gift was intended may seem like a relatively straightforward inquiry, in fact, it can be surprisingly complex. Arguments can arise regarding a host of issues, such as whether it is erroneous to consider the reason for the transfer, and whether donative intent must be expressed at the time that the property is transferred or delivered to the recipient.
The Ontario Court of Appeal recently addressed both of these issues in Buffa v. Giacomelli, 2026 ONCA 566, a case where a mother gave more than $1.7 million to her daughter via inter vivos transfers. This decision is noteworthy for providing guidance on the distinction between motive and donative intent, clarifying whether donative intent must be expressed at the time a gift is delivered, and confirming the time of delivery when a gift consists of funds transferred into a joint bank account.
Background
In January 2020, the mother was diagnosed with breast cancer. Shortly thereafter, she set up joint bank accounts with her daughter, and began moving her funds into them. A few months later, in March 2020, the mother also completed beneficiary designations for her RRIF and TFSA, designating her daughter as the beneficiary of both instruments. Then, in May 2020, the mother signed two gift letters – one of the letters confirmed the mother’s intent to liquidate her investments and gift the proceeds to her daughter. The other letter directed the daughter to sell the mother’s condominium and to deposit the proceeds into their joint accounts, and for the daughter to keep the proceeds as a gift.
The transfers substantially depleted the mother’s estate. Following the mother’s death in 2023, her son challenged the transfers and sought to have the funds returned to her estate. He alleged that his sister had exercised undue influence over their mother and that the transferred funds were subject to the presumption of resulting trust. If the funds were clawed back into the estate, he would be entitled to 45% of the transfers.
The application judge dismissed the son’s claim, finding that the transfers were valid inter vivos gifts. In particular, the daughter had rebutted the presumption of resulting trust by establishing her mother’s clear and unmistakable intention to gift the funds. The application judge also rejected the allegation of undue influence.
For more on the application judge’s decision, reported at Buffa v. Giacomelli, 2025 ONSC 4024, see our original blog post: The Overlooked Paragraph in Pecore: Rediscovering Relationship Evidence in Joint Account Disputes.
Issues on Appeal
The son appealed from the application judge’s decision, both with respect to the court’s determination that the mother was not subject to undue influence and that the presumption of resulting trust had been rebutted. With respect to the latter, the son argued that the application judge erred by improperly conflating the mother’s motive for the transfers with donative intent. He also asserted that the judge erred in failing to address whether the mother had donative intent when the gifts were delivered.
Distinguishing Donative Intent from Motive
There was significant evidence before the application judge of the mother’s asymmetrical relationships with her children, which helped to explain why the mother might have wanted to benefit her daughter and not her son. When the mother passed away, she and the son had been estranged for years, starting in 2019, following the father’s death. The mother and son did not see or speak to each other after the son objected to the mother acting as estate trustee for the father’s estate, challenging his mother’s capacity.
On appeal, the son argued that the mother’s estrangement from him and close relationship with his sister was evidence of motive to gift the funds, but did not prove that the mother actually intended to make a gift.
The Court of Appeal dismissed the son’s argument. Writing on behalf of the panel, Zarnett J.A. confirmed that there is a distinction between a donor’s intention to make a gift and their underlying motive or purpose for doing so, but held that the application judge had not improperly substituted one for the other. Rather, the relationship evidence helped explain the mother’s donative intent, and was consistent with other evidence which confirmed the mother’s intention to gift the funds, including the gift letters, the beneficiary designations, and the creation of the joint accounts.
Moreover, the Court of Appeal also affirmed that courts may consider the quality of the relationship between a transferor and transferee when determining whether a gratuitous transfer is subject to the presumption of resulting trust, in keeping with the Supreme Court of Canada’s decision in Pecore v. Pecore, 2007 SCC 17.
The Timing of Donative Intent Vis a Vis Delivery
The son also argued that the application judge failed to consider whether the mother still had donative intent when the proceeds from the sale of her condominium were delivered. In making this argument, the son took the position that delivery did not occur until between September 2021 and May 2022, when the daughter withdrew the sale proceeds from the joint accounts for her own use. By that time, it had been more than a year since the mother had signed the gift letter regarding the sale proceeds, and the mother was beginning to show signs of dementia.
The Court of Appeal rejected the son’s argument on two grounds. First, the panel noted that the son had identified the wrong time of delivery. Citing McNamee v. McNamee, 2011 ONCA 533, the Court confirmed that delivery occurs when a donor divests themselves of control over the property being gifted and transfers it to the donee. Relying on Pecore, the Court then recognized that “the creation of a joint account may constitute a valid gift of funds in the joint account in favour of the joint account holder, including rights to withdraw the funds during the donor’s lifetime.” The Court also held that depositing funds into a joint account constitutes delivery “to the joint account holder who has the right to make a withdrawal,” as the donor will have divested themselves of “the right to control the funds in favour of the joint account holder who has the right to withdraw them.”
In this case, the condominium proceeds were therefore delivered in May 2021, when they were deposited into the joint account. This distinction is significant, as it meant that the gift was delivered before the mother began showing signs associated with dementia.
Second, the Court found that the mother still had donative intent when the gift was delivered, notwithstanding the fact that the sale proceeds were deposited into the joint account approximately a year after the mother first expressed her intention to gift the sale proceeds to the daughter. Zarnett J.A. confirmed that a donor’s intention to make a gift must continue until the time of delivery. However, in the absence of any change in capacity, the Court of Appeal held that the application judge was entitled to infer that the mother’s clear statement of intention in May 2020 continued through to the delivery in May 2021. Zarnett J.A. held, “[t]here is no requirement that the intention be expressly repeated.” There was also no evidence that the mother had changed her mind during the intervening period.
Takeaways
Buffa provides helpful guidance with respect to gifts and donative intent. The Court’s decision establishes that:
- a donor’s motive for a gift can be relevant when determining whether donative intent has been established;
- donative intent may be inferred if a gift is delivered after the intention to make a gift is first expressed – even if a significant period of time has passed; and
- a gift consisting of a joint bank account, which includes the right to withdraw funds during the donor’s lifetime, is delivered when funds are deposited into the account.
Lastly, Buffa demonstrates the value of documenting an intention to make a gift. While creating a clear written record of intent may not prevent future disputes as to whether a gift was intended, the Court’s decision indicates that such records may serve as compelling evidence of intent, even if the gift is not completed until a later date.
Have a great rest of your week,
Suzana.