Also known as: inter vivos gift · inter-vivos gift · inter-vivos gifts · gifts inter vivos
Written by attorneys — see sources below.
A transfer of property made by a donor during the donor's lifetime. When accompanied by a qualifying contemporaneous writing, the transfer may reduce a devise by satisfaction or offset an heir's intestate share as an advancement.
Faith executed a will leaving Isaiah a specific devise of one hundred thousand dollars. Several months later Faith wired seventy five thousand dollars to Isaiah. The memo on the wire read advance on legacy. After Faith's death the estate treats the transfer as satisfying the devise in part. Isaiah receives only twenty five thousand dollars from the estate because the lifetime gift operates to reduce the amount due under the will.
Cole provided his daughter Virginia with a fully furnished office suite valued at eighty five thousand dollars. Cole drafted an internal firm memo stating the suite was an advance on what she would eventually receive from him. Cole died intestate survived by Virginia and his son Brenda. Brenda petitions to treat the office suite as an advancement. The suite offsets Virginia's intestate share because the memo supplies the required contemporaneous writing.
David Shapira, M. D., died April 13, 1973, a resident of this county. This is an action for a declaratory judgment and the construction of the will of David Shapira, M. D. By agreement of the parties, the case has been submitted upon the pleadings and the exhibit. The portions of the will in controversy provide that the residue goes to the testator's three beloved children, Buth Shapira Aharoni, Daniel Jacob Shapira, and Mark Benjamin Simon Shapira in equal shares with qualifications. The will states that Daniel Jacob Shapira should receive his share of the bequest only if he is married at the time of the testator's death to a Jewish girl whose both parents were Jewish. In the event that at the time of the testator's death he is not married to a Jewish girl whose both parents were Jewish, then his share should be kept by the executor for a period of not longer than seven years. If Daniel Jacob gets married within the seven year period to a Jewish girl whose both parents were Jewish, the executor is instructed to turn over his share to him. In the event that Daniel Jacob is unmarried within the seven years after the testator's death to a Jewish girl whose both parents were Jewish, or if he is married to a non Jewish girl, then his share should go to the State of Israel, absolutely. The provision for the testator's other son Mark is conditioned substantially similarly. Daniel Jacob Shapira, the plaintiff, is twenty-one years of age, unmarried and a student at Youngstown State University. The plaintiff alleges that the condition upon his inheritance is unconstitutional, contrary to public policy and unenforceable because of its unreasonableness, and that he should be given his bequest free of the restriction.
View caseThe testator must indicate in a contemporaneous writing that the gift is intended to operate in satisfaction of the devise. The devisee's written acknowledgment is an alternative but not required when the testator supplies the writing. The memo line on a wire transfer stating advance on legacy satisfies the requirement.
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The gift reduces the share only if the decedent declared in a contemporaneous writing or the heir acknowledged in writing that the gift is an advancement. A memo prepared at the time of transfer but never shown to the heir still qualifies under the writing requirement.
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The standard for mental capacity to make an irrevocable inter vivos gift is higher than the standard for executing a will. The donor must understand the effect the gift may have on the donor's future financial security and on anyone dependent on the donor.
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