GIFT
A voluntary transfer of property or of a property
interest from one individual to another, made gra-
tuitously to the recipient. The individual who
makes the gift is known as the donor, and the indi-
vidual to whom the gift is made is called the donee.
If a gratuitous transfer of property is to be
effective at some future date, it constitutes a
mere promise to make a gift that is unenforce-
able due to lack of consideration. A present gift
of a future interest is, however, valid.
Rules of Gift-Giving
Three elements are essential in determining
whether or not a gift has been made: delivery,
donative intent, and acceptance by the donee.
Even when such elements are present, however,
courts will set aside an otherwise valid gift if the
circumstances suggest that the donor was, in
actuality, defrauded by the donee, coerced to
make the gift, or strongly influenced in an unfair
manner. In general, however, the law favors
enforcing gifts since every individual has the
right to dispose of PERSONAL PROPERTY as he or
she chooses.
Delivery Delivery of a gift is complete
when it is made directly to the donee, or to a
third party on the donee’s behalf. In the event
that the third person is the donor’s agent, bailee,
or trustee, delivery is complete only when such
person actually hands the property over to the
donee.
A delivery may be actual, implied, or sym-
bolic, provided some affirmative act takes place.
If, for example, a man wishes to give his grand-
son a horse, an actual delivery might take place
when the donor hires someone to bring the horse
to the grandson’s farm. Similarly, the symbolic
delivery of a car as a gift can take place when the
donor hands the keys over to the donee.
Delivery can only occur when the donor sur-
renders control of the property. For example, an
individual who expresses the desire to make a
gift of a car to another but continues to drive the
car whenever he or she wishes has not surren-
dered control of the car.
A majority of states are practical about the
requirement of a delivery.Where the donor and
the donee reside in the same house, it ordinarily
is not required that the gift be removed from the
house to establish a delivery. If the donee has
possession of the property at the time that the
donor also gives the person ownership, there is
no need to pass the property back and forth in
order to make a legal delivery. Proof that the
donor relinquished all claim to the gift and rec-
ognized the donee’s right to exercise control
over it is generally adequate to indicate that a
gift was made.
In instances where delivery cannot be made
to the donee, as when the person is out of the
country at the time, delivery can be made to
someone else who agrees to accept the property
for the donee. If the individual accepting deliv-
ery is employed by the donor, however, the court
will make the assumption that the donor has not
rendered control of the property and that deliv-
ery has not actually been made. The individual
accepting delivery must be holding the property
for the donee and not for the donor.
In situations where the donee does not have
legal capacity to accept delivery, such delivery
can be made to an individual who will hold it for
him or her. This might, for example, occur in the
case of an infant.
Donative Intent Donative intent to make a
gift is essentially determined by the donor’s
words, but the courts also consider the sur-
rounding circumstances, the relationship of the
parties, the size of the gift in relation to the
amount of the donor’s property as a whole, and
the behavior of the donor toward the property
subsequent to the purported gift.
The donor must have the legal capacity to
make a gift. For example, INFANTS or individu-
als judged to be unable to attend to their own
affairs have a legal disability to make a gift.
In addition, an intent to make a gift must
actually exist. For example, a landlord who rents
a house to a tenant does not have the intent to
give such premises to the tenant, even though the
tenant takes possession for an extended period of
time. Similarly, a gift to the wrong person will
not take effect. If an individual mistakenly gives
gold jewelry to an imposter who is believed to be
a niece, the gift is invalid because there was no
