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Digest of the Week | Incomplete Gifts

Neighbour brings application for value of cheque



Teixeira v. Markgraf Estate | 2017 ONCA 819 | Ontario Court of Appeal


Gifts -- Completion of incomplete gift -- General principles


Appellant was neighbour of deceased -- For some 15 years before her death, neighbour assisted deceased with housekeeping and chores -- Deceased made will just before her death, bequesting $100,000 to neighbour -- Deceased gave neighbour $100,000 cheque in addition to bequest -- Neighbour attempted to cash cheque, but was told that there were insufficient funds in her account -- Other accounts of deceased had sufficient funds, but specific instructions from deceased were needed to release them -- After deceased’s death, accounts were frozen -- Estate trustee for deceased obtained advice, and took position that gift was imperfect and unenforceable -- Neighbour brought application against estate, for value of cheque -- Application was dismissed, with costs to estate -- Application judge found that there was no expectation of compensation, or contract between parties -- Application judge also found that neighbour had not acted to his own detriment, in anticipation of cheque -- Neighbour claimed that bank dishonoured cheque, which was not raised in court below -- Neighbour appealed from findings of application judge -- Appeal dismissed -- Possession of cheque did not allow neighbour to bring action for its value -- Deceased could have taken measures before death, to change mind about gift -- Bank acted properly in refusing to honour cheque -- Delivery of cheque was not properly effected -- Equitable principles could not be used by neighbour to be entitled to gift.
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