Gifts in Quebec: Formation, Delivery and Revocation

Overview

A bank transfer between relatives, a signed promise to give a chalet and a gift of shares can produce different legal outcomes even when everyone describes the transaction as generous. Qualification determines whether a right has actually passed, whether a notarial act was required and whether the donor can demand its return. The starting point is the gift (donation) as a contract under art. 1806 CCQ, supported by the general rules of consent and capacity.

The ordinary regime protects a deliberate transfer without making family affection legally enforceable. Analyse formation first, then performance and any ground for setting the transaction aside. A defect existing when the parties contracted raises nullity; later misconduct may support revocation of an otherwise valid gift. Specialized matrimonial consequences are addressed in Donations and Marriage Contracts.

Learning Objectives

• Qualify a gratuitous transfer and distinguish present divestment from a disposition dependent on death.
• Apply capacity, subject matter, notarial form and manual gift requirements to concrete transactions.
• Distinguish contractual enforcement, nullity and revocation for ingratitude, including the applicable time limits.

Qualification and donative intent

The donor (donateur) must intend a gratuitous transfer to the donee (donataire). The transfer may concern ownership, a dismemberment of ownership or another right held by the donor. A gratuitous service, temporary permission to use property or delivery for safekeeping does not necessarily dispose of such a right. Identify precisely what leaves one patrimony and enters the other before applying the gift rules.

Donative intent (intention libérale), also called animus donandi, supplies the intentional element. The material element involves the donor's impoverishment and the donee's enrichment without an equivalent return. A wish to benefit someone emotionally is compatible with a gift; an arrangement exchanging property for promised services may be onerous in whole or in part. Neither kinship nor the absence of a written repayment schedule conclusively establishes generosity. The party asserting the gift must prove the facts supporting that qualification.

A pure gift is ordinarily a unilateral contract because the donor alone assumes the contractual obligation. Acceptance remains necessary: unilateral describes the distribution of obligations, not the absence of agreement. Under art. 1385 CCQ, agreement operates subject to the special formalities required for this nominate contract. A mere promise of generosity does not establish that an effective donation has already occurred.

A remuneratory gift or gift with a charge counts as a donation only to the extent that its value exceeds the remuneration or charge, under art. 1810 CCQ. A nominal stated price cannot settle the analysis when the recipient also assumes substantial obligations. Determine the economic substance, the parties' intention and the value of the reciprocal performance.

Worked example: money held for a parent

Factual Scenario

Hypothetical. Nadia transfers $35,000 to her adult son and tells him to keep it available for her housing expenses. The account is in his name, but messages show that he must return any unused balance.

Present divestment and the role of death

An inter vivos gift (donation entre vifs) entails present divestment (dessaisissement actuel): the donor becomes bound to the donee now. Physical delivery can occur later. Article 1807 CCQ expressly permits a term affecting transfer or delivery, an undertaking to acquire an individualized thing and an undertaking to deliver property determined only by kind. Present divestment concerns the legal commitment and cannot be reduced to immediate physical possession.

A gift mortis causa (donation à cause de mort) depends on the donor's death for divestment itself, under art. 1808 CCQ. Distinguish an existing obligation payable at death from an obligation whose existence depends on death. The document's heading, a reference to eventual payment and the parties' informal terminology cannot replace interpretation of the operative clauses. A present acknowledgment of indebtedness, definite subject matter and security for payment may support an immediately binding gift.

This distinction affects validity. Under art. 1819 CCQ, a gift mortis causa is null unless made by marriage or civil union contract or capable of taking effect as a legacy. An ordinary signed agreement is therefore insufficient merely because it clearly expresses a wish to benefit someone after death. Whether it can operate as a legacy requires its own testamentary analysis; the gift label cannot cure missing testamentary requirements.

Article 1818 CCQ limits inter vivos gifts to present property. Property to be acquired under a firm present undertaking can fall within that category. Property the donor may freely decide to acquire later is different. A purported inter vivos gift of future property is deemed mortis causa; where present and future property are combined, that treatment concerns the future property alone.

Article 1823 CCQ also requires an inter vivos gift to be by particular title, on pain of absolute nullity. Specify the property or rights being given instead of purporting to transfer the universality of the donor's property or a fractional share of that universality. Describing a determinate asset clearly assists both qualification and delivery, but cannot overcome a forbidden universal disposition.

Worked example: ownership and retained enjoyment

Factual Scenario

Hypothetical. A properly executed deed transfers ownership of a specified cottage to Léa while reserving a usufruct to the donor.

Capacity and protected recipients

Capacity (capacité) must be assessed when consent is expressed. The general presumption of capacity does not dispense with examining actual aptitude to understand and undertake the transaction. A person alleging incapacity bears the burden of establishing it on a balance of probabilities. Evidence should address the relevant time, rather than relying exclusively on a diagnosis or deterioration occurring much later: art. 4, art. 1398, art. 2803 and art. 2804 CCQ.

Article 1813 CCQ restricts gifts by a minor or an adult under tutorship or a protection mandate to property of little value and customary presents, even when represented. The provision reserves the stipulations of the protection mandate and the rules governing marriage or civil union contracts. Examine the applicable mandate and judgment instead of assuming that representation confers an unrestricted power to distribute the person's capital. The nature and scale of the gift require assessment in their actual financial context.

Receiving a gift has distinct rules. Under art. 1814 CCQ, the parents or tutor may accept for a minor, and for a conceived but unborn child on condition of live and viable birth. Acceptance for an adult under tutorship or a protection mandate belongs to the tutor or mandatary. Nevertheless, minors and adults with a tutor or mandatary may themselves accept property of little value or customary presents. A gift burdened with obligations also requires attention to the representative's authority; art. 211 CCQ requires the tutorship council's authorization for a tutor to accept a gift with a charge for a minor.

A donor's full capacity does not eliminate every protective prohibition. Article 1817 CCQ invalidates a gift made while the donor receives care or services to specified persons connected with an establishment, another accommodation facility or a residence within the health and social services legislation. The provision reaches owners, administrators, operators, persons in charge, employees and persons carrying on paid or unpaid activities there. Its exception concerns a donee who is also the donor's spouse or close relative. It separately invalidates a gift to a foster-family member while the donor lives with that family.

Record the recipient's actual role, the setting and the dates of services. Evidence of sincere gratitude does not remove a prohibition whose conditions are met. Conversely, the person's occupational label alone cannot prove that the particular statutory setting and temporal connection exist.

Article 1820 CCQ addresses a gift during a reputedly mortal illness. It is null as mortis causa, whether death follows or not, if no circumstance helps validate it. If the donor recovers and leaves the donee in peaceful possession for three years, the defect disappears. Separate this rule from incapacity: serious illness does not itself answer whether consent was validly expressed.

Notarial form and the manual gift exception

Article 1824 CCQ generally requires a notarial act en minute (acte notarié en minute) for a gift of movable or immovable property, on pain of absolute nullity. Private signatures, witnesses or a detailed family letter do not replace that form. The requirement concerns formation and protects the parties through deliberate legal commitment. The deed should identify the transferred rights, the parties, the terms, any retained rights and any charge.

Publication is a separate requirement under the same article. It concerns opposability to third persons rather than the intrinsic validity supplied by the proper instrument. Immovable rights involve the Land Register; publication of the relevant movable rights involves the Register of Personal and Movable Real Rights. A defect in publication must therefore be analysed on its own terms instead of automatically being treated as absence of a valid contract: art. 2934 and art. 2938 CCQ.

A manual gift (don manuel) falls within the exception when the property is movable and the parties' agreement accompanies delivery and immediate possession. These conditions are cumulative. The exception dispenses with both the notarial form and the publication imposed by art. 1824 CCQ, subject to any separate rules governing the particular asset. A promise to hand over jewellery next month does not establish a completed manual gift today. Nor does handing over an item for examination establish that its recipient possesses it as owner.

Delivery (délivrance) occurs when the donor puts the donee in possession or allows the donee to take possession with obstacles removed, under art. 1825 CCQ. The exception is not confined to passing tangible objects from one hand to another. A completed bank transfer may satisfy it, but the evidence must still establish acceptance, donative intent and present, definitive divestment. An account label or uncompleted banking instruction is insufficient by itself.

Indirect and disguised gifts have their own qualification issue. Article 1811 CCQ subjects them to the substantive gift rules while excluding the ordinary gift form requirement. The legal transaction containing the liberality supplies its own formal requirements. A simulated label cannot be used to avoid capacity or substantive validity rules, and an ordinary defective gift does not become indirect simply because the parties choose another name for it.

Worked example: two informal gifts

Factual Scenario

Hypothetical. Marc signs a private letter giving a painting and a small parcel of land to a friend. He delivers the painting immediately, the friend accepts it as owner and takes it home.

Delivery, charges and the donor's responsibility

An effective gift creates legal obligations despite its gratuitous character. Determine which rights the donor holds and has undertaken to transfer. Under art. 1816 CCQ, giving property one neither owns nor is charged or authorized to give is null unless the donor expressly undertakes to acquire it. This reservation fits the present commitment permitted by art. 1807 CCQ and differs from treating another person's property as already available for donation.

The donor must arrange delivery and cannot retain practical obstacles inconsistent with the commitment. The substantive regime also limits the donor's responsibility because the donee receives a gratuitous advantage. The donor transfers only the rights held in the property. Recovery of payments made to discharge a third person's right or perform a charge is limited to the excess over the benefit obtained. Where eviction results from a known but undisclosed defect in title, the donee may recover expenses incurred because of the gift beyond the benefit retained: art. 1826 to art. 1827 CCQ.

The donor does not ordinarily answer for latent defects in the property. However, a known and undisclosed defect affecting the donee's physical integrity engages the donor's obligation to repair the resulting injury. The distinction prevents an automatic importation of the seller's warranty regime while preserving the specific protection established by art. 1828 CCQ. Article 1829 CCQ allocates contract expenses to the donor and removal expenses to the donee.

For instance, a donor who knows that a gifted power tool has a dangerous electrical defect and conceals it cannot rely solely on the absence of an ordinary warranty when that defect injures the donee. Establish knowledge, nondisclosure, the injury and its connection with the defect. A disappointing resale value raises a different issue.

For a gift with a charge, identify the obligation's creditor, content, amount and performance date. A genuine undertaking to pay identified expenses has consequences that a general hope of future companionship may lack. Qualification of the gratuitous component follows art. 1810 CCQ. Article 1821 CCQ invalidates an inter vivos gift requiring payment of debts or charges other than those existing at the time unless the contract expresses their nature and determines their amount. An unlimited undertaking to pay whatever debts the donor later incurs exposes the transaction to that rule.

Nonperformance requires examination of the contract and ordinary remedies. A valid resolutory clause may support resolution when its conditions are met; the general rules governing performance and resolution remain relevant, including art. 1590 and art. 1604 to art. 1606 CCQ. Identify the actual breach and the required remedial steps. Breach of a charge and ingratitude may arise from related facts, but each demands its own legal basis and proof.

For example, failure to reimburse one minor expense does not necessarily permit resolution of the entire gift. The ordinary rule excludes resolution for a default of minor importance, subject to the exception for repetitive default in successive performance. A notice or demand should identify the obligation and allow the required opportunity to perform where applicable. Keep invoices, payment records and the deed together: proof that money remains unpaid does not establish that every condition for terminating the contractual arrangement has been met.

Nullity and revocation for ingratitude

Nullity (nullité) addresses a failure of formation. Absolute nullity for missing notarial form or a prohibited universal inter vivos gift is distinct from a defect protecting a particular person's consent. Under art. 1418 CCQ, a person with a present and existing interest may invoke absolute nullity, the court raises it of its own motion and confirmation is unavailable. Under art. 1422 CCQ, annulment entails treating the contract as never having existed and restitution of prestations received.

Revocation (révocation) for ingratitude presupposes an inter vivos gift that can otherwise operate. Article 1822 CCQ renders the gift itself null if it is stipulated to be revocable at the donor's sole discretion, even in a marriage or civil union contract. The donor cannot recover property validly given merely because generosity later seems unwise. Article 1836 CCQ instead permits revocation for seriously reprehensible conduct toward the donor, assessed in light of the gift's nature, the parties' means and the circumstances.

The donor bears the civil burden of proving that conduct. Serious violence, threats or grave false accusations require careful factual evaluation; loss of affection, separation or ordinary disappointment does not automatically satisfy the test. The inquiry evaluates objective acts in context. A substantial gift does not purchase permanent emotional allegiance or turn every refusal of the donor's wishes into statutory ingratitude.

Article 1837 CCQ requires the action during the donee's lifetime and within one year of the cause of ingratitude or the donor's knowledge of it. If the donor dies while the action could still be brought, the right survives, but the heirs must act within one year of death. Record both the conduct date and the knowledge date. The heirs' rule does not revive a right already lost before the donor died.

Under art. 1838 CCQ, revocation requires restitution of what the donee received under the contract according to the general restitution rules and extinguishes the stipulated charges for the future. Establish what was received, what remains and the relevant performance history. A judgment cannot be reduced to an instruction to return an identical object without considering the restitution regime.

Worked example: disappointment and threats

Factual Scenario

Hypothetical. After receiving a valid gift, Olivier reduces social contact with the donor.

Practice Checklist

• Identify the transferred right, acceptance and evidence of donative intent.
• Separate present obligation, delayed performance and dependence on death.
• Verify present property, particular title and any express undertaking to acquire.
• Check capacity, representation, protective prohibitions and the transaction date.
• Establish notarial form and publication, or every condition of a manual gift.
• Value charges, specify future obligations and distinguish breach from disappointment.
• Identify nullity, resolution or ingratitude as separate grounds for relief.
• Calculate the revocation deadline and assemble evidence relevant to restitution.