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25 Cards in this Set
- Front
- Back
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BROADLY SPEAKING WHAT IS A GIFT? |
The immediate transfer of property rights from the donor (person making the gift) ---- to the donee (person receiving the gift) w/out any payment or other consideration. |
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IS A PROMISE TO MAKE A GIFT IN THE FUTURE ENFORCEABLE WITHOUT CONSIDERATION? |
NO - Because no consideration is paid; no contract arises between the parties – therefore, a promise to make a gift in the future is unenforceable w/o some form of consideration. |
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WHAT ARE THE THREE TYPES OF GIFTS? |
1. Inter Vivos Gifts 2. Testamentary Gift Transfers 3. Gift Causa Mortis |
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WHAT IS AN INTER VIVOS GIFT (Latin for “between living people”)? |
An Inter Vivos Gift is an ordinary gift of personal property that one living person makes to another, like a gift at a birthday party. It is effective immediately and irrevocable. |
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WHAT ARE THE THREE ELEMENTS OF AN INTER VIVOS GIFT? |
1. Donative Intent 2. Delivery 3. Acceptance. |
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EXPLAIN DONATIVE INTENT. |
The donor must have a present mental capacity and must intend to make an effective gift of her property; and intend to make an immediate transfer of property. |
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HOW IS DONATIVE INTENT APPLIED TO TITLE? |
Donative Intent applied to title: The donor may intend to immediately vest title in the donee, and reserve a right of possession until some future date. |
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EXPLAIN THE DELIVERY ELEMENT? |
The property must be delivered to the donee, so that the donor (owner) parts w/dominion and control |
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WHAT ARE THE THREE TYPES OF DELIVERY? |
1. Manual Delivery 2. Constructive Delivery 3. Symbolic Delivery |
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WHAT IS MANUAL DELIVERY? |
Manual delivery occurs when donor physically transfers possession of the item to the donee Traditionally, manual delivery of a gift is required if practicable. EXAMPLE: A manually delivers a pen to B by handing him the pen |
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WHAT IS CONSTRUCTIVE DELIVERY? |
An act that amounts to a transfer of title by operation of law when actual transfer is impractical or impossible. EXAMPLE: the delivery of a key to a desk (with intent to give) amounts to constructive delivery of the contents of the desk |
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WHAT IS SYMBOLIC DELIVERY? NOTES: NC doesn't recognize this; and in many jurisdictions, symbolic delivery is allowed only if manual delivery is impracticable or impossible. |
The donor physically transfers to the donee an object that represents or symbolizes the gifted item, like the letters in Gruen. EXAMPLE: A note from E stating “I give my 100 shares of Apple, Inc. to F” may be enough to deliver the shares to F. |
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WHAT IS ACCEPTANCE? |
The donee must accept property; although acceptance of a valuable item is usually presumed (Sometimes acceptance is disputed) |
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WHAT ARE TESTAMENTARY GIFTS? |
Individuals transfer their property when they die through a valid will or inheritance. NOTE: This type of gift only valid if it satisfies the Statute of Wills, which requires a writing signed by the donor and witnessed by 2 ore more people. |
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WHAT IS A GIFT CAUSA MORTIS? |
A gift of personal property made by a living person in contemplation of (imminent) death. |
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IS A GIFT CAUSA MORTIS REVOCABLE? |
Yes. Donor make revoke at any time before her death. In most states, the gift is revoked automatically if donor does not die from anticipated peril |
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HOW IS A GIFT CAUSA MORTIS VALIDATED? |
To validate a gift causa mortis, a donor must die as anticipated; and you MUST die from the anticipated illness/peril |
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WHAT ARE THE FOUR ESSENTIAL ELEMENTS FOR A GIFT CAUSA MORTIS? |
(i) Donative intent; (ii) Delivery; (iii) Acceptance; and (iv) The Donor’s anticipation of imminent death |
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EXPLAIN ELEMENT IV - DONOR'S ANTICIPATION OF IMMINENT DEATH. |
Imminence: Donor must be suffering from an actual illness that threatened her life. The mere abstract fear of death from a future cause (e.g., fear of flying, fear of death in war, etc.) is not sufficient. (CONT. ON NEXT CARD) |
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DONOR'S ANTICIPATION OF IMMINENT DEATH CONT. |
Death as Anticipated: To validate a gift causa mortis, a donor must die as anticipated. However, considerable liberality has been given to this concept in more recent decisions. |
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EXAMPLE OF DEATH AS ANTICIPATED. |
Example: A victim of an auto accident is placed in an ambulance. In fear of death from the injuries sustained in the accident, she attempts to make a gift causa mortis. En route to the hospital the ambulance is struck by a train and the donor is killed. Can it be said that the donor died “as anticipated”? The more modern authorities would say YES. |
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GENERAL RULE FOR RECOVERY OF A GIFT CAUSA MORTIS ? |
Recovery - General Rule: One who attempts a gift causa mortis in contemplation of death will have made a valid gift as long as she fails to recover, though the precise cause of death is different (See Brind v. International Trust Co.) |
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GIFT CAUSA MORTIS CASE: BRIND v. INTERNATIONAL TRUST CO. |
Donor died of causes other than original expectation. Was it a gift in anticipation of death OR in anticipation of a particular cause of death? (Prof Mac – it’s the death not the cause that determines if the gift is effective) |
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BRIND v. INTERNATIONAL TRUST CO. (CONT) WHAT IS THE MAJORITY RULE? |
Death must result from anticipated peril: (i) Majority Rule (Inflexible): Must die exactly from the actual anticipated peril in order for a gift causa mortis to be valid. |
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BRIND v. INTERNATIONAL TRUST CO. (CONT)WHAT IS THE MINORITY RULE? |
(ii) Minority Rule (Flexible): As long as you die while you are still recovering – Prof. Mac Court generally disfavors GCM's: main concern is potential for fraud ------> Courts see it as an attempt to get around statute of wills |
