Wills and Trusts

Wyatt, Tarrant & Combs, LLP

Gifts Must Be Delivered (Usually)

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Gifts Must Be Delivered (Usually)

In Estate of Roger T. Hansen, 810 N.W.2d 358 (Wis.App., 2012), the decedent was busy changing his Will, including writing his attorney to ensure that certain notes were forgiven in the Will, but died before signing it.  The obligor argued that the forgiveness was a gift causa mortis – but the court held otherwise because nothing was delivered to the donees.

In Greene v. Greene, 938 N.Y.S.2d 629 (N.Y.A.D. 2 Dept., 2012), the issue was whether a letter directing that certain bonds were to be reregistered  in the recipient’s hands was an inter vivos gift when the envelope stated it was only to be opened after the sender died, and it was.  The court held no inter vivos gift because there was no present transfer of ownership.

In Mendenhall v. Mountain West Farm Bureau Mutual Insurance Company, 274 P.3d 407 (Wy. 2012), the issue, for accident insurance purposes, was whether a truck had been given to the driver.  The facts were:

In January 2008, Lucas told David Nelson (Nelson), the owner of Wyoming Electric, that he was looking to acquire a pickup truck. Nelson decided to give Lucas one of the old company trucks. Lucas took the keys to the 1997 Ford truck from the Wyoming Electric office, took possession of the truck, and retained possession of the truck. Lucas was responsible for all the expenses associated with the truck, and on January 29, 2008, he added the truck to his Allstate automobile insurance policy. Nelson and Wyoming Electric did not exercise any control over the truck after Lucas drove it off the company lot. However, Nelson and Lucas did not apply for a new certificate of title reflecting Lucas as the owner of the truck until April 16, 2008. Additionally, the truck’s registration and plates remained in Wyoming Electric’s name and the truck was not removed from Wyoming Electric’s Mountain West insurance policy.

The court declined to require formal transfer of title:

The parties agree that Nelson gave Lucas the truck; that Lucas removed the keys from the Wyoming Electric office and took possession of the truck; that Lucas was responsible for all expenses associated with the truck and purchased insurance; and that Nelson and Wyoming Electric did not exercise any further control over the truck. The fact that Nelson gave Lucas the truck, and allowed him to leave with possession of the truck, demonstrates that Nelson had the present intention to make an immediate gift. Additionally, the stipulated facts show that Nelson actually delivered the truck to Lucas, divesting himself of dominion and control. Finally, the facts show that Lucas accepted the truck when he drove it off Wyoming Electric’s property and took responsibility for all expenses related to the truck. The undisputed facts, as applied to the elements of a gift, clearly demonstrate that Nelson transferred ownership of the truck to Lucas through an inter vivos gift.

Turney P. Berry

Louisville, Kentucky

Leave a reply. Please note that although this blog may be helpful in informing clients and others who have an interest in information privacy and security, it is not intended to be legal advice. The information on this blog also should not be relied upon to form an attorney-client relationship.

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