![]() On the other hand, the importance of delivery must be mitigated since it is possible that a donor may only benefit from a gift at a later date. This delivery confirms the donor's intent to make the gift and must be deemed to be unequivocal since the courts will refuse to intervene to perfect a gift that is not complete. The donor has to divest him or herself of the property he or she has to place it in the possession of the donee. In general, such acceptance is presumed once the third condition is met, that is to say the delivery of the property that is the subject-matter of the transfer by the donor to the donee. The second condition is that the donee accepts the gift made to him or her the donee must agree to the transfer of property that the donor made in his or her favour. The first one is that the individual making the transfer actually intends to make a gift it must be demonstrated that the donor's objective was to make a gift when he or she transferred the property. Three conditions must be met for a gift inter vivos to be valid. Therefore, a person contemplating his or her own imminent death could make a donatio mortis causa to a qualified donee, such as a charitable organization, but a gift under these circumstances would not be valid under civil law. Consequently, the gift is automatically revoked as soon as the donor recovers. Therefore, the donor has to die for the donatio mortis causa to be valid, since this type of gift only takes effect at such time. The third condition requires that the gift can only be complete and perfect upon the death of the donor. The transfer of possession is essential in the case of a donatio mortis causa. The second condition requires that the property be effectively delivered to the donee or that the formalities required for this delivery have been fully completed the donee should be able to take possession of the property that is the subject-matter of the transfer in his or her favour without any encumbrance. Thus, the donative intent is motivated by the possibility of the donor's death. Furthermore, the imminence of this death should be what motivates the donor to give. Therefore, at the moment the donor makes the gift, he or she should be contemplating the prospect of his or her imminent, though not necessarily certain, death. It is further conceded that for an effectual donatio mortis causa three things must combine: first, the gift or donation must have been made in contemplation, though not necessarily in expectation, of death secondly, there must have been delivery to the donee of the subject-matter of the gift and thirdly, the gift must be made under such circumstances as shew that the thing is to revert to the donor in case he should recover. In addition to the liberal intent, donatio mortis causashould meet three other conditions in order to be valid: Under common law, there are generally two categories of gifts: donatio mortis causa and gifts inter vivos. The gesture must be entirely gratuitous and a reflection of liberal intent on the part of the donor in regard to the donee. Furthermore, the donor must not draw any personal benefit, either directly or indirectly, in consideration for the transfer. Thus, a gift is the voluntary and gratuitous transfer of property. One of the sources of the basic principle underlying the definition of gift/ don in common law comes from an Australian decision:īut, it is, I think, clear that to constitute a “gift”, it must appear that the property transferred was transferred voluntarily and not as a result of a contractual obligation to transfer it and that no advantage of a material character was received by the transferor by way of return. ![]() Hence, once again, there are no terminological problems associated with the use of the term “gift”. This is one of the translations that has been accepted for common law in French, the other one being donation. ![]() The term “gift” translates into don in the Income Tax Act.
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