Texieira v. Markgraf Estate 2017 Ont CA
Claimant was the deceased’s neighbour who helped her during the last years of her life solely out of goodwill and without expectation of any compensation. 6 days before her death, the deceased gave the claimant a cheque for $100,000. He attempted to cash it, but there were insufficient funds in that account – even though there were sufficient funds in other accounts. Before the claimant could sort out the problems, the deceased died. The motions judge held, and the Court of Appeal agreed, that a gift by cheque is not complete when the cheque is given; only when the cheque has been cashed or has cleared. An incomplete gift is no gift all. The claimant had other arguments, none of which were successful. There was no contract because there was no consideration. There is no claim on a bill of exchange because there was no consideration. Equity by estoppel did not apply because the claimant did not act in reliance on a shared assumption. For example, the claimant would have suffered no reliance detriment if the deceased had stopped payment on the cheque.
Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.