WHEN IS A GIFT A GIFT?

June 9, 2011 § Leave a comment

We’ve talked here before about inter vivos gifts between spouses, and how they do not raise a presumption of undue influence.

What about where the question is whether in actuality there was a gift at all, as where a child claims that the now-deceased or infirm parent made a gift of an item, and the siblings deny that any gift was made?

As a general rule, the donee bears the burden of proof by clear and convincing evidence all of the following:

  1. That the donor is competent to make a gift;
  2. That the gift was a voluntary act of the donor who had donative intent; 
  3. That the gift was complete and not conditional; 
  4. That the donor delivered the gift; and 
  5. That the gift was irrevocable.

In re Estate of Ladner, 909 So. 2d 1051, 1054 (Miss. 2004).

In the case of real property, however, the person seeking to set aside a facially valid deed bears the burden of proof. Mullins v. Radcliff, 515 So.2d 1183, 1190 (Miss. 1987).

In the case of a CD titled in the names of two or more persons, payable to any of the persons named, it is presumed that those persons are owners of the account.

In re Last Will and Testament and Estate of Dunn v. Reilly, 784 So. 2d 935, 942 (Miss. 2001) (citing Madden v. Rhodes, 626 So. 2d 608, 616 (Miss. 1993)). “When an account is held jointly in the name of one depositor or another, ‘each depositor is allowed to treat joint property as if it were entirely his own.’” DeJean v. DeJean, 982 So. 2d 443, 449-50 (Miss. App. 2007) (quoting Drummonds v. Drummonds, 248 Miss. 25, 31, 156 So.2d 819, 821 (1963)). That presumption of ownership may be overcome “‘upon proof of forgery, fraud, duress, or an unrebutted presumption of undue influence.’” Reilly, 784 So. 2d at 942 (quoting Madden, 626 So. 2d at 617).

These notes are taken from Judge Griffis’s COA opinion in Yarborough v. Patrick, decided June 7, 2011, at ¶¶ 22-26.

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