Transfer of Property - Gifts

Question 1

Acquisition by Gift - Definition

Answer 1

Donative transfers that are affective during the lifetime of the donor.

Question 2

Capacity - Definition

Answer 2

The law requires persons to have sufficient legal capacity in order for them to perform certain legal acts.
1. Mental - attainment of age.

Question 3

Donative Intent - Definition

Answer 3

The donor must intend to make a present transfer of ownership

Question 4

Delivery - Three Types

Answer 4

If an object can be handed over, it must be.

1. Actual Delivery
2. Constructive Delivery
3. Symbolic Delivery

Question 5

Constructive Delivery - Definition

Answer 5

The donor hands over something that gives the donee dominion and control over the object.

Question 6

Symbolic Delivery - Definition

Answer 6

1. Handing over something symbolic of the property given

2. Usually involves handing over a written instrument declaring a gift of the subject matter.

Question 7

Acceptance

Answer 7

1. Usually not an issue

2. The donee accepts the gift from the donor

Question 8

Requirements for Gifts of Personal Property

Answer 8

1. The donor must transfer possession (“hand over the property”) to the donee with the manifested intention to make a gift to the donee.
2. Both intention and delivery must be present
3. Acceptance by the donee is also required by seldom an issue, courts presume acceptance upon delivery, unless a donee expressly refuses a gift.
4. Intention to make a gift may be shown by oral evidence, delivery requires objective acts.

Question 9

Requirements for an Inter Vivos Gift

Answer 9

1. There must exist the intent on the part of the donor to make a present transfer, delivery of the gift, either actual or constructive to the donee, and acceptance by the donee.
2. The proponent of the gift has the burden of proving each of these elements by clear and convincing evidence.

Question 10

Donative Intent of Inter Vivos Gifts

Answer 10

Inter vivos gifts require that the donor intend to make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death, the gift is invalid unless made by will

Question 11

Delivery of Inter Vivos Gifts

Answer 11

There must be a delivery of the gift, either by physical delivery of the subject of the gift or a constructive or symbolic delivery such as by instrument of gift, sufficient to divest the donor of dominion and control over the property.
1. What is sufficient to constitute delivery “must be tailored to suit the circumstances of the case.”

Question 12

Acceptance of Inter Vivos Gifts

Answer 12

Acceptance by the donee is essential to the validity of an inter vivos, but when a is of value to the donee, the law will presume an acceptance on his part.

Question 13

Definition of a Causa Mortis Gifts

Answer 13

A gift made in contemplation of and in expectation of immediate approaching death, is a substitution for a will

Question 14

Causa Mortis Gifts - If the Donor Lives

Answer 14

If the donor lives, the gift is revoked, although some courts may hold that revocation occurs only if the donor elects to revoke upon recovering.

Question 15

Minority Modern Trend for Causa Mortis Gifts

Answer 15

The modern trend is to enforce the decedent’s intent even if there is no evidence of some failure to comply with the wills act formalities, so long as there is clear and convincing evidence of donative intent.

Question 16

Ring Rules - Traditional

Answer 16

The traditional rule regarding rings is the donor cannot recover the ring if the donor is at fault.

Question 17

Ring Rules - Modern

Answer 17

The modern approach is a no-fault approach, holding that the ring must be returned to the donor regardless of who broke the engagement.

Question 18

Bailment - Definition

Answer 18

Rightful possession of personal property by someone who does not own the property.