Also known as: gifts inter vivos · inter vivos gift · inter vivos gifts
Written by attorneys — see sources below.
A voluntary transfer of property without consideration from one living person to another that takes effect immediately and is irrevocable. The transfer requires donative intent on the part of the donor, delivery of the property, and acceptance by the donee.
Gregory Gates executed a will leaving one hundred thousand dollars to his employee Isaiah. Several months later Gates wired seventy five thousand dollars to Isaiah with a memo stating advance on legacy. After Gates died the estate treated the wire as satisfying the devise in part leaving twenty five thousand dollars still due under the will.
A husband transferred most of his property to a revocable trust retaining full control and income for life. After his death his wife challenged the arrangement as an attempt to defeat her distributive share. The court examined whether the husband had truly divested himself of ownership through a completed gift inter vivos.
Ferdinand Straus died on July 1, 1934, leaving a last will and testament dated May 5, 1934, which contained a provision for a trust for his wife for her life of one-third of the decedent’s property both real and personal. On June 28, 1934, three days before his death, he executed trust agreements by which, in form at least, he transferred to trustees all his real and personal property. The beneficiary named in the trust agreement brought this action to compel the trustees to carry out its terms. The widow challenged the validity of the transfer to the trustees. The trial court found that the trust agreements were made, executed and delivered by said Ferdinand Straus for the purpose of evading and circumventing the laws of the State of New York, and particularly sections 18 and 83 of the Decedent Estate Law. The trial court also found that the settlor reserved the enjoyment of the entire income as long as he should live, and a right to revoke the trust at his will, and in general the powers granted to the trustees were in terms made subject to the settlor’s control during his life.
View caseThe donor must possess donative intent to make a present gift. The donor must deliver the property either actually constructively or symbolically. The donee must accept the gift which is generally presumed.
A gift inter vivos is absolute and unconditional once delivered and cannot be revoked. A gift causa mortis is made in contemplation of imminent death remains revocable until the donor dies and is automatically revoked if the donor survives the peril.
Yes when the testator indicates in a contemporaneous writing that the gift is intended to operate in satisfaction of the devise. The devisee need not acknowledge the writing for the rule to apply.
…divest himself of the ownership of the property. It is, therefore, apparent, that the fraudulent interest which will defeat the gift inter vivos cannot be predicated of the husband’s intent to deprive the wife of her distributive share as widow.” ( Benkart v. Commonwealth Trust Co. , 269 Penn. St. 257, 259.) In Pennsylvania the…