Making a gift to a loved one shortly before death may seem like a generous or meaningful gesture. However, in Québec, some of these “last-minute” gifts – known in legal terms as gifts mortis causa – are generally prohibited under Article 1820 of the Civil Code of Québec (the “C.C.Q.”), unless exceptional circumstances apply. The law distinguishes these from regular inter vivos gifts, which are made between living persons without the context of imminent death.
In a recent decision rendered on April 9, 2025, the Superior Court of Québec (the “Court”) applied the prohibition on gifts mortis causa in the matter cited as Golini c. Balcerowska, 2025 QCCS 1150. In that case, the daughters of a terminally ill man challenged several transactions made to his common-law partner shortly before he died. The Court was asked to decide whether these transfers were valid gifts or legally impermissible acts made under the shadow of death.
Four transactions, one legal question: Were these gifts valid?
The deceased’s daughters challenged four key transactions purportedly made by him in the final months and days of his life, following a diagnosis of a metastatic liver condition with a prognosis of three months. Each transaction raised questions about the deceased’s consent and intent, and whether the legal presumption against gifts mortis causa should apply.
1. The $100,000 cheque: Signature in doubt
The first issue involved a $100,000 cheque drawn from the deceased’s business account, purportedly intended as a gift to his partner. The evidence on record, including the expert evidence adduced by handwriting experts, led the Court to find significant discrepancies when compared to authentic samples and to conclude that the signature on the cheque was not that of the deceased.
Even if the Court had found the signature to be genuine, it noted that the gift would have been void as a gift mortis causa under Article 1820 of the C.C.Q., given the deceased’s awareness of his imminent death at the time the cheque was signed.
2. Condo purchase rights: No proof of intent
The second contested transaction was a modification to a purchase agreement for a condominium, transferring the deceased’s rights to purchase the property to his partner. This transaction was related to the first, involving the $100,000 cheque, as the partner sought to use those funds to make a down payment on the condominium.
The Court annulled the modification, which lacked the deceased’s signature, finding no clear evidence of his intent and consent to cede his rights to his partner. The Court also noted evidence that he had explored alternative arrangements with other family members.
3. The Audi Q5: Timing raised legal red flags
The third issue involved the gratuitous transfer of a luxury vehicle, an Audi Q5, to the partner. However, the Court noted the following:
- The timing was problematic. The deceased signed the transfer documents two days before opting for palliative sedation, suggesting the transfer was contingent on his impending death. This aligned with the characteristics of a gift mortis causa, in contrast to a valid gift inter vivos, which requires an immediate divestment of the object – something that did not occur. The partner advised the daughters only the day after the deceased’s passing that she intended to take possession of the luxury vehicle. She claimed that, prior to his passing, the deceased had agreed to transfer the Audi Q5 to her in exchange for her FIAT.
- The transaction appeared inconsistent with the deceased’s indication in his will that he wished to bequeath his vehicle to his grandson, a fellow luxury car aficionado.
The Court did not find it plausible that the deceased would have intended for his grandson to receive the partner’s FIAT.
4. The family crypt: A gift that withstood scrutiny
The fourth transaction, which the Court upheld given the circumstances, was the assignment of a family crypt space to the partner. The Court recognized this as a valid inter vivos gift, motivated by the deceased’s desire for his partner to rest beside him, and noted that it did not deprive the daughters of their allocated spaces.
The partner’s counterclaim for moral and punitive damages rejected
The Court also addressed and dismissed the partner’s counterclaim for damages, which alleged reputational harm to her as an actress and artist, as well as emotional distress caused by the daughters’ actions. The Court found no intentional fault or wrongdoing on the part of the daughters in pursuing the case. It also noted that the daughters had withdrawn their unworthiness claim against the partner for pragmatic reasons, in order to facilitate tax-efficient estate administration in light of the deceased’s bequest of his registered retirement savings to the partner, which were subject to a rollover tax shelter.
Legal reflections: Timing, consent, and the law’s protective role
The case highlights the interplay of several provisions of the C.C.Q., particularly:
- the presumption of nullity for gifts made during a terminal illness;
- the distinction between inter vivos gifts and gifts mortis causa;
- the legal requirement to show clear intent, consent, and immediate divestment for a gift to be valid; and
- the Court’s role in protecting vulnerable individuals from undue influence at the end of life.
Key takeaways
- Québec law prohibits gifts made in contemplation of death unless strict exceptions are met.
- Valid gifts between living persons (inter vivos) must be immediate, unconditional, and well-documented.
- Timing and delivery matter: if a gift is tied to death or only takes effect after death, it may be annulled.
- Clear documentation and legal advice during illness can help prevent painful disputes later.
Are you planning to make a gift during a health crisis – or managing an estate that involves end-of-life transfers? Our estate law team can help you navigate Québec’s legal requirements to ensure your intentions are respected and your legacy preserved.
Contact our Estates and Trusts Litigation Group to discuss how we can assist you with clear, conflict-free planning.
