British Columbia, Canada
The following excerpt is from McMillan v. McMillan, 1977 CanLII 301 (BC SC):
Is this case authority upon which a court in applying s. 8 of The Family Relations Act could order the property passed by way of gift from the husband to the wife returned? The general rule is that where there is a complete gift inter vivos it is irrevocable: Brown v. Davy (1889), 18 O.R. 559. In certain cases or situations where the gift has been obtained as a result of undue influence or fraud, or where the donee was non compos mentis at the time he made the gift, then the courts have ruled that the gift may be revoked.
In this case there is no evidence whatever of undue influence. The conveyance was the husband’s idea not the wife’s, it was based, I am satisfied, on the husband’s concern for his wife and his children at that time. There is no evidence that the plaintiff was non compos mentis, or had been tricked in some way into transferring the property to his wife. Had this been the case, or if there had been evidence of fraud or undue influence, then the court could look at all the circumstances and, applying the principles set out in Shehousky v. Shehousky, order that the wife transfer a half interest in the property to her husband. In this case, however, there is simply no evidence of trickery, undue influence, or that the plaintiff did not understand or know what he was doing when he conveyed this property to his wife, and, that being the case, this court cannot find that in the circumstances here it can apply s. 8 of The Family Relations Act in such a way as to cancel out or revoke the gift made by the husband to the wife in October 1972.