These findings were open to the application judge on the
record before him and they are fatal to this submission.
Was the property gifted?
 Marjolein submits that the application judge erred in
several respects in concluding that Theodora gifted the Flos
Road property to Richard and Ingrid. For example, Marjolein
notes that Richard claimed to have purchased the property;
that Ingrid did not claim that a gift had been made to her until
the hearing; that neither Theadora’s lawyer nor her alternate
executor, Carol Harding, testified that a gift had been intended;
that there was no explanation for the exclusion of Frank from
the will; and that the will, at the time of the transfers, had
divided both real and personal property into thirds for the
 Marjolein adds that the application judge erred in
assuming that Theadora’s action in placing her property into
joint names was evidence that a gift was being made. Finally,
Marjolein argues that the application judge wrongly relied
on notes documenting a visit and phone call Theadora made
to her lawyer’s office in determining her intention concerning
 These submissions must be rejected.
 The application judge applied the proper test for a gift, as
set out in McNamee and summarized in Foley, at para. 25:
“To establish a gift, one must show intention to donate, sufficient
delivery of the gift, and acceptance of the gift”.
 As the application judge noted, it was not necessary for
Theadora to state that she was gifting the property. Her inten-
tion to gift the property was evident from her instructions to her
solicitor and his assistant and the executed documents, all of
which supported this finding. This included
— her advice to her solicitor that she would take title alone
and add Richard to the deed later;
— the codicil to her will, making it clear that the home would
not form part of her estate;
— her request that the joint tenancy between herself and
Richard be created on his return to Canada;
— the absence of any request to revert the title to tenancy in
— her call to Carol Harding seeking assurance that her home
would pass to Richard and Ingrid on her death.