Rule For Gifts

Front 1

What are the 3 elements and 2 types of gifts?

Back 1

All gifts require three elements: intent, delivery, and acceptance. [p. 165.] There are two types of gifts, gifts intervivos and gifts causa mortis. [p. 171]

Front 2

Three things a donee must establish to acquire title of personal property by gift are as follows:

Back 2

(1) Donative intent by the alleged donor

(2) Delivery

(3) Acceptance

Front 3

What is an Intervivos Gift?

Back 3

(1) A gift (2) of personal property (3) made during the life of the parties.

Front 4

Intent Intervivos

Back 4

1) Inter vivos intent requires clear and convincing evidence that a present and irrevocable transfer of title or right of ownership has taken place [p. 169 & 179.]

2) The intent must be made while the owner is alive and without contemplation of imminent death.

3) Intent can happen in any order relative to the other two elements (delivery and acceptance). [p. 173.]

Front 5

Define the 3 intervivos intent elements?

Back 5

(1) Present Transfer

The donor intended to make a present transfer of the ownership rights with or without a future right of possession. The donor does not need to expressly announce intent to make a gift. [p. 169]

Evidence of possession, insurance, taxes (or omission of taxes), exhibition, and repairs are not dispository factors. [p. 177.]

(2) Without Contemplation of Death

(3) Any order

Front 6

What is gift causa mortis?

Back 6

(1) A gift (2) of personal property (3) made in contemplation of (4) imminent death

Front 7

Intent Causa Mortis

Back 7

Gifts causa mortis require that the owner (1) intend a present transfer of ownership rights of the gifted item (2) while death is looming. [p. 173.] (3) which can be revoked any time before the donors death if the donor doesn't die from reason he thought would kill him and (4) The owner must exercise the right to revoke the gift or the donee keeps it.

[Note: Newman v. Bost indicates that causa mortis gifts need a witness, but Burgess jurisdiction does not require a witness. A witness is good proof, however.]

Front 8

Define the 2 intent elements for gift causa mortis and the 2 rules for revocability.

Back 8

(1) Present Transfer
(i) For gifts causa mortis, there must be clear and convincing evidence that the donor intended to make a present transfer of the ownership rights with or without a future right of possession [p. 170]

(ii) Intent must be formed before delivery. [p. 173.]
If the donee is already in possession of the property when the donor forms the intent to give the property, the donee must deliver the property back to the donor and the donor must redeliver the property. [p. 173.]

(2) Death Looming
Death looming means that the person must form the intent while the person objectively (what would a reasonable person believe) and subjectively (you have to believe you are going to die) believes that the person is going to die within a reasonably short period of time. [p. 173 & class discussion.]

(a) Objective Belief
The belief of looming death must be objectively reasonable, meaning that a reasonable person in a similar situation would believe that s/he was going to die soon.

(b) Subjective Belief
The donor must actually believe that s/he is going to die soon.

(c) “Soon.”
This element is the classic grey area issue that has no set definition. Professor Burgess will likely give you a sample case law range. For example, one fictitious case indicates that under 2 weeks is a short time and another fictitious case indicates that more than a year does not constitute a short time. It is your job to argue whether the time and surrounding facts suggest that the time was short enough that the urgency of death was upon the donor. It could also be defined differently for the objective and subjective standards.]

Would a reasonable person with _____ weeks to live believe that death is imminent and would be thinking about it?

(3) A gift causa mortis can be revoked any time before the donors death if the donor doesn't die from reason he thought would kill him

(4) The owner must exercise the right to revoke the gift or the donee keeps it.

Front 9

What is Delivery?

Back 9

(1) Delivery must be sufficient to divest the owner of dominion and control over the rights to the property. [p. 179.] There are three types of delivery: actual, constructive, and symbolic. [p. 165.]

(a) Actual
A donor actually delivers a gift by transferring physical possession of the property into the control of the donee. [p. 165.]

(b) Constructive
A donor constructively delivers a gift by providing the donee with a means to access, use, or enjoy the item. [p. 165 & 169-170.]

(c) Symbolic
A donor symbolically delivers a gift by handing over an item that represents the gift. [p. 165 & 169]

(2) Delivery must be as perfect as the nature of the property and the circumstances and surroundings of the parties reasonably permit. [p. 179.]

If the nature of the property and the circumstances surrounding the parties allow for actual dominion, the donor must actually deliver the gift to the donee. [p. 165] If actual delivery is not practicable because of the size or weight of the object, or its inaccessibility, constructive or symbolic delivery may be permitted. [p. 165 & 171]

Front 10

What is acceptance and what are the 2 elements?

Back 10

Courts will presume that the donee has accepted the gift if the gift conveys value to the donor. [p. 165 & 180.]

(1) Value
Value can be measured by either objective standards or subjective standards. [E.g. monetary or sentimental value.] [Class discussion.]

(2) Presumption
If the donor contests acceptance, the donor maintains the burden of proof to demonstrate that the donee did not accept. [Class discussion.]