gifts Flashcards
three elements of a gift
- Intent- donor must intend to presently (immediately) transfer title to the property, with no consideration
- delivery- donor must put the donee in possession of the gifted property
- acceptance – donee must accept the property
what are the three types of delivery and which one does the law prefer if possible
Manual- donor puts donee in possession of the actual gifted object
Symbolic- donor puts donee in possession of an object that is symbolic of the gifted object – Ie giving a paper that represents title to the property
Constructive- donor puts donee in possession of an object that gives access to the gifted object
Ie giving the donee a key that unlocks the property
the law prefers manual when possible
what does the law presume about accpetance
Law presumes this element if the property is of value, and the threshold to establish value is very low
As a practical matter, acceptance is presumed unless a donee rejects the gift
what are the two types of gifts
gift inter vivos and gift causa mortis
what is a gift inter vivos and is it revocable?
occurs where the gift is made during the donor’s life and NOT because of impending death
Rule: a gift inter vivos is irrevocable
do courts require the three elements occur in a particular order for gift inter vivos?
no; delivery of the item might occur before the donor has the requisite intent to transfer her property rights
what is gift causa mortis and is it revocable?
occurs where the gift is made during the donor’s life because of IMPENDING DEATH
The transfer of title and possession still occurs during the donor’s life
Rule: a gift causa mortis may be revoked by the donor if the donor does not die from the contemplated cause of death
Similarly, if the donor dies of a cause other than the one contemplated by the donor, the gift may be revoked by the estate of the donor
if a donor intends to pass only once she dies, is that an effective gift causa mortis?
no; Such an intent to pass title upon a donor’s death is testamentary, which would require a will to be effective
do courts require the elements to be in a certain order for gift causa mortis?
courts usually require the elements of intent and delivery to occur either simultaneously or in the order of intent and then delivery
what is physical/manual devlivery a question of?
practicability!
is delivery in gift law the same as deed law?
no! Deed delivery is a pure question of intent to presently transfer the title, gift delivery is a question of possession
So if you had real estate as a gift, you’d need to seperate the analysis by paragraphs for each method of delivery
how is the transfer present in gift causa mortis
because death is impending
how do we look for intent to presently transfer title
Intent does not have to be written or oral
Circumstances can indicate the intent too
how do we look for delivery
there needs to be a sort of FINALILTY to it; if you are still holding onto something to deliver and you are still somewhat in control of it, no delivery
how do we determine the posession part of delievery if its not clear? (ie DONT BRING THIS PART UP IF THE POSESSION PART IS OPEN SHUT)
the person receving the gift needs to be aware of it and needs to have a certain level of physical control over the item
can conditon subsequents be attached to a gift
yes, Ie like a wedding ring, gift conditioned on getting married
can condtion precdents be attached to a gift?
no, if the condition has to precede the giving of the gift, no dice
is a writing needed for a valid gift
no, unless its real estate, then the deed needs to satsify SOF
how is The intent element in gift law different from the delivery element in deed law
Delivery element in deed law is a PRESENT INTENT that needs an act that manifests that intent
Gif intent just needs a DONATIVE INTENT, and the intent is whatever is going on in his head
how are conditions viewed between deed law and gift law
Conditions on the delivery of deed are ignored and deed is valid
Condition precedents placed on delivery in gift law makes the intent element lacking under gift law
Gruen – man gifts a remainder in an expensive painting to his son
P never took possession of the painting nor did he seek to do so
The painting remained with his father until his death
Following his death, P requested possession of the plaining and when d refused, p commenced this action
D is plaintiff’s stepmother
P asserts that he is the rightful owner of a paining which he alleges that his dead father gave to him
Argues that his father made a valid gift of the title in 1963 reserving a life estate for himself
His father retained possession of the painting until he died in 1980
D asserts that the gift was testamentary in nature and invalid because the formalities of a will were not met
- whether a valid inter vivos gift of chattel may be made where the Donar has reserved a life estate in the chattel and the donee never has had physical possession of it before the donors death
- if it may, which factual findings on the elements of a valid inter vivos gift more nearly comport with the weight of the evidence in this case
to make a valid inter vivos gift, the donor must intend to make a present transfer, either actual or constructive delivery of the gift must occur, and the donee must accept the gift
Other than the letters, the father made several statements orally and in writing indicating that he had previously given p the painting and that P OWNED IT
Under these circumstances it would be illogical for the law to require the donor to part with possessions of the paining when that is exactly what he intends to retain
P states he had made several statements acknowledging the gift to his friends and associates, even showing some of them his fathers gift letter
Woo v smart: man gifts check to a friend in anticipation of his death;
William and woo had an intimate relationship for about twenty years when William died
During the two days before his death, William handed to woo three personal checks payable to her order in the amounts of 80k, 42k and 2k,
The day after she died, she presented the latter two checks and the proceeds were paid to her
Smart was the administrator of Williams estate
He filed a complaint against woo, alleging that the three checks were not gifts because they were not presented for payment and paid before Williams death
He asked the court to declare that woo is not entitled to receive any part of Williams estate to satisfy the last remaining 80k check
Whether the trial court erred in ruling that the donee of three checks is not entitled to the check proceeds as gifts causa mortis ☠️
Sub issue- whether possession of the property given (the money) was delivered to the donee at the time of the alleged gift
delivery of a check is not delivery of money to create a gift causa mortis – manual delivery should be done when possible
Court says he just put her in possession of check
But the check was not the gift, the MONEY was
Possible counterargument – bank as agent but i don’t think the court considers this
Donor has to put donee in PHYSICAL POSSESSION
Here, the BANK put her in possession
So court says no delivery
BUT YOU COULD ARGUE IT THE OTHER WAY
EXAM: saying bank was acting as donors agent
