Gift Causa Mortis

Hollywood often portrays the decrepit man, sitting in his deathbed, dictating to close confidants his last thoughts as his life slowly fades away. If this person makes a gift during this time, it is a "gift causa mortis." A key aspect of this gift is that it is considered revoked "if the giver recovers from the illness or escapes from the peril." Prob C § 5702. 

For example, Pops Winter was of the ripe old age of 85. He resided in Campbell, CA and lived in a California ranch home. One day Mr. Winter, known as old man Winter to the neighbors, was gardening in his backyard. His grandson, Shecky Winter was mowing the back lawn while Mr. Winter was tending to the rose bushes. Shecky, a loveable clutz of the highest order, proceeded to lose control of the lawn mower causing it to crash into Mr. Winter. The blades of the lawn mower eviscerated the lower body of Mr. Winter. Shecky, aghast that he had caused this tragedy, rushed to the aid of his grandfather. 

Mr. Winter had always worn an Omega watch which he had received for years of service with the city council of Campbell. Mr. Winter knew that Shecky was a likeable grandson who had been befallen by unfortunate brakes in his life. Having pity for his grandson and knowing that his life on earth was close to extinguishing, he took off his watch and handed it to Shecky, telling him to "take and enjoy it." Surprised by the generous gesture, Shecky accepted the gift and thanked his grandfather profusely. Shecky had usually worn cheap imitation watches, he often was hoodwinked into believing that the "Rolex" he purchased from the guy in the Wal-Mart parking lot was genuine. Upon seeing the accident, a neighbor called 911 and Mr. Winter was rushed to the local hospital. Due to the wonders of modern science, Mr. Winter miraculously recovered from his seemingly mortal injuries. 

Since Mr. Winter had recovered from the ostensibly fatal injury, the gift to Shecky, his Omega watch, was revoked. Thus, Mr. Winter was within his legal rights to request the return of the watch from Shecky. However, Mr. Winter declined to do so because the author wants to have a happy ending to this hypothetical. 

What is a Gift

In the spirit of Christmas, I thought it would be appropriate to legally define a “gift.” Yes, there is a legal definition to a gift. Consequently, a gift is a transfer of property that is made voluntarily and without consideration. The following elements are necessary for a valid gift U.S. v Alcaraz-Garcia (9th Cir 1996) 79 F3d 769; 13 Witkin, Summary of California Law, Personal Property §124 (10th ed 2005)):

1. There must be an intent on the part of a donor having capacity to contract to make an unconditional gift;

2. The donor's intent must be to make a present gift of the property (if the intention is to make a future transfer, there is no gift);

3. There must be an actual or symbolic delivery of the gift, i.e., the donor must relinquish control of the property; and

4. The donee must accept the gift.

For example, if I wrapped up my favorite burgundy sweater in a box, presented it to my friend Dan on Christmas day and Dan accepted the sweater, this transaction would qualify as a “gift” in legal terms. Since there was intent on my part to gift the sweater to Dan because I wrapped it up in a package, I delivered the sweater to Dan by presenting it to him in a box and Dan accepted the gift when I presented it to him.