Gifts Flashcards
1) Inter Vivos Gifts (DCDIDA)
1) Donative Capacity- Donor has mental capacity to make a gift
2) Denotative intent- requires the donor has the present intent to make a gift
3) Delivery- The transfer of possession, that manifests the intent to make a gift
3) Acceptance- The law presumes acceptance of a gift delivered with donative to intent
Delivery (ACWS)
Actual psychical delivery (if people live together that fact alone does not establish delivery)
Constructive Delivery (give keys to vault)
Delivery in writing - description of property + Donee + intent
Symbolic delivery- shows you a picture and says here is what im giving you
Cure balls on delivery
A gift made by check is not delivered until check is negotiated or fund deposited
A gift of securities is made even when donor keeps dividends
promissory note not delivered until payment is made
2) Gifts Causa Mortis (DCDIDAAD)
5 elements (DCDIDAAD)
Donative Capacity, Donative Intent. Delivery, Acceptance
Apprehension of impending death
Gifts Causa Mortis are recoverable if the donor survives the event causing death
The gift can be revoked by
1) Affirmative act
2) Donor’s survival
3) the donee predeceasing the donor
The gift causa mortis is valid if the donor dies of an event other than what causes the impending apprehension of death
A donor cannot use a gift causa mortis to escape creditors
Virginia Uniform Transfers to Minors Act (UTMA)
Provides for the transfer of personal property from an adult transferor (over age of 18 or 18) to be a custodian for the benefit of a minor
The transferor must deliver the property to the custodian who will possess and control on behalf of minor
The custodian has authority to invest and manage the property
The custodian may distribute the property to the minor to the extent the custodian thinks is advisable for the use and benefit of the minor
The custodian must distribute the property to the minor when he reaches the age of 18
However, if the terms of the original transfer say make distribution at 21, then at 21
If minor does before distribution is made, it goes to his estate
Remedies
Detinue- An action to recover personal property that someone else took possession of but has refused to return
Trespass- an action to recover money damages from the loss of possession
Trover an action to recover the value of the property itself.
Jointly held bank accounts
If not married and not expressly stated otherwise, parties to a joint bank account own money in proportion to their contributions
If married= share equally
Can be other but must show by clear and convincing evidence (applies to general rule and marriage)
