Some individuals choose to transfer most or all of their assets to their loved ones during their lifetime, rather than under a will after their death. This estate planning option can have many positive results, as people are able to see their family members enjoy their gift. However, this option is not without its potentially negative consequences. When someone gifts or transfers the majority of their wealth during their lifetime, there is little to be distributed under their will, which may be unexpected for beneficiaries (or those expecting to be beneficiaries). While these inter vivos transfers or gifts are often completed as part of a carefully executed estate plan, sometimes they are completed for the wrong reasons or for unlawful reasons. If grounds exist, these inter vivos gifts or wealth transfers can be set aside. This would result in those assets becoming part of the estate and dispersed to the estate beneficiaries.
This paper by was presented to the 17th annual STEP National Conference in Toronto on June 19, 2015; it reviews the conditions required to create a valid gift, grounds for attacking or setting aside inter vivos gifts or wealth transfers, and recent relevant case law.
Kimberly Whaley is with Whaley Estate Litigation in Toronto