We often write about the benefits (and some pitfalls) of gifting, before and after death. Personally, when I recommend gifting, I assume that unless there are specific outcomes required to realize on the gift, a gift is exactly that, a gift – something transferred voluntarily without expectation of getting it back because you changed your mind. A recent court case appears to support this assumption.
According to Johnston v. Song, 2018 ONSC 1005, a couple began living together. She moved into his home which he owned for approximately 2 years. Subsequently she became pregnant with their child and he asked her to marry him, with ring and all. She said yes but as it turns out, they never married.
About a decade later, he voluntarily transferred ownership of the home from himself to the both of them as joint tenants. She left him about a month later.
According to his evidence, he had no idea or inkling of this impending separation when he made the deed transfer. Essentially, the Court understood why he wanted to “change his mind” subsequent to the separation, but his evidence was that, at the time of transfer to joint tenancy, he knew and intended that if he were to die, ownership would pass to her – a common estate planning technique. More to the point, there was no evidence that he was reserving the right to undo the transfer in the event of separation.
In fact, there was no evidence to show that when he transferred title into joint tenancy, he was reserving to himself any ownership right or any right to undo that transfer, The Court concluded that at the time of the transfer, he intended the transfer as a gift without reservation.
A gift is a gift!