In Hugginson v. Hugginson [1], one of the issues considered by the Ontario Court of Appeal was whether the Rule in Strong v Bird [2] was misapplied by the application judge. In doing so, the court began by considering whether the purported doner maintained a continuing intention to gift $400,000 to his stepdaughter before his death in 2022 [3].

Facts

The appeal arises out of the application judge’s decision in the Estate of Glenn Poole (the “Deceased”). The Deceased died on December 26, 2022, before he was able to make the $400,000 gift in question to his stepdaughter (the “Appellant”), which the Appellant later transferred to herself from the Deceased when acting as Estate Trustee. [4]

The application judge applied the test for inter vivos gifts as established in McNamee v McNamee [5], the salient points of which are as follows:

• The donor had the requisite intention to make a gift
• The gift was delivered to the donee during the donor’s lifetime
• The donee accepted the gift [6]

The application judge held that while the third element of the test was met, the Appellant had failed to meet their onus in satisfying the first two requirements. [7]

On Appeal, the Appellant argued that the application judge incorrectly disregarded the appellant’s key evidence of intention [8]. The Appellant attempted to provide evidence of intention by presenting the file notes of the Deceased’s investment advisor along with a letter from the Deceased dated November 30, 2022 (the “November Letter”), and a letter from the Deceased’s investment advisor dated July 28, 2023 (the “July Letter”) [9].

The File Notes

The court held that the investment advisor’s file notes were inadmissible due to their failure to meet the exception for business records under s.35(2) of the Evidence Act, as they were not made in the ordinary course of business, nor was the investment advisor called to attest that is was in their ordinary course of business to make such records [10]. Further, the court held that the file notes failed to meet any exception for hearsay evidence [11]. Despite these findings, the appellate court reasoned that even if the file notes were admissible, they did not establish the Deceased’s specific intention to gift $400,000 to the Appellant – there was no evidence that the Deceased decided on a particular dollar value or authorized his advisor to make such a transfer before his death [12].

The November Letter

The Court of Appeal found that the November Letter made by the Deceased was the only evidence of the Deceased’s intention. [13] However, the November Letter did not contain a specific gift to the Appellant, instead the court interpreted from the letter that any such gift was only a mere possibility and intention to actually make the gift could not be presumed. The November Letter read as follows:

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 would 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.

A copy of this letter should also be sent to my investment advisor at Investors Group. [14]

The July Letter

The investment advisor’s July Letter, which was created after the death of the Deceased is not an appropriate source of intention before or leading up to death. Therefore, the appellate court held that the application judge was right to disregard it [15].

Intention and the rule in Strong v Bird

The appellate judge ultimately found that the application judge made no error in concluding that the Deceased had not formed the required intention to make an inter vivos gift before his death. [16]

The rule in Strong v Bird operates to save an imperfect inter vivos gift where a continued intention to make a gift exists until the donor’s death and the intended donee is appointed Estate Trustee of the donor’s estate.

“Where 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” [17].

As such, despite the Appellant being appointed the Deceased’s Estate Trustee, the appellate judge held that in failing to establish the Deceased’s continued intention to make the $400,000 gift to the Appellant before their death, the Rule in Strong v Bird did not apply to the facts. The Court of Appeal held that it would not interfere with the application judge’s decision. [18]

Takeaway

This case serves as a reminder that evidence of intention is vital and that the courts require specific evidence that the donor intended to make an inter vivos gift leading up to their death for such an imperfect gift to be saved by the rule in Strong v Bird.

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[1] 2025 ONCA 902 (CanLII).

[2] [1871] L.R. 18 Eq. 315.

[3] note 1 at para 2 & 23.

[4] ibid at para 1& 2.

[5] ibid at para 3.

[6] ibid.

[7] ibid at para 3 & 4.

[8] ibid at para 6 & 7.

[9] ibid at para 7.

[10] ibid at para 11,12 & 13.

[11] ibid at para 14.

[12] ibid at para 16.

[13] ibid at para 17.

[14] ibid at para 18.

[15] ibid at para 20.

[16] ibid at para 22.

[17] ibid at para 24.

[18] ibid at para 26.