What is the test for making a gift?

In Robertson v. Hayton (2003), 4 E.T.R. (3d) 115 (Sup. Ct. Ont.), the question was whether money transferred out of the bank accounts of the defendant’s parents were actually gifts or not. The case, at paragraph 30, reiterates the test given in McNamee but it also adds that in order for there to be an inter vivos gift, the onus is on the donee to establish the test stated in McNamee. The standard of proof for an intention to donate is high and the donee must show that the transaction was a gift by proving a clear and unmistakable intention on the part of the donor to make a gift to the donee. If there is conflicting evidence, it is not sufficient that the preponderance of evidence turn the scale slightly in favour of the gift. The preponderance must be such as to leave no reasonable room for doubt of the donor’s intention. It should be inconsistent with any other intention or purpose. If it falls short of going this far then the intention of the gift fails. This case also elaborates on the capacity one needs to have in order to make a gift, at paragraph 33. There needs to be a capacity to understand the nature and effect of the transaction. The test is the same as used in the law of contracts. However, depending on the size of the gift the test for determining capacity shifts. If the gift is significant then the test shifts towards that used to judge testamentary capacity.