To constitute a valid inter vivos gift, the following criteria must be met:
(Orig. Code 1863, § 2614; Code 1868, § 2615; Code 1873, § 2657; Code 1882, § 2657; Civil Code 1895, § 3564; Civil Code 1910, § 4144; Code 1933, § 48-101.)
Law reviews.- For article, "Multiple Party Accounts: Georgia Law Compared with the Uniform Probate Code," see 8 Ga. L. Rev. 739 (1974). For article, "Are We Witnessing the Erosion of Georgia's Separate Property Distinction?," see 13 Ga. St. B.J. 14 (2007). For article, "The Renewed Significance of Title in Dividing Marital Assets," see 16 (No. 6) Ga. St. B.J. 24 (2011). For annual survey on wills, trusts, guardianships, and fiduciary administration, see 64 Mercer L. Rev. 325 (2012). For note discussing the treatment of joint bank accounts in Georgia, with regard to survivorship and testamentary effect, prior to the enactment of the Financial Institutions Code of Georgia, see 7 Ga. St. B.J. 370 (1971). For comment on Felder v. Felder, 71 Ga. App. 860, 32 S.E.2d 550 (1944), see 7 Ga. B.J. 478 (1945).
JUDICIAL DECISIONSANALYSIS
Statute is merely a codification of the common law on the subject of gifts. Felder v. Felder, 71 Ga. App. 860, 32 S.E.2d 550 (1944) (see O.C.G.A. § 44-5-80).
Requirements for validity of gift.
- To make a valid gift there need be only a present intention to give and a complete renunciation of right by the giver over the thing given, and full delivery of possession as a gift. Mims v. Ross, 42 Ga. 121 (1871); Culpepper v. Culpepper, 18 Ga. App. 182, 89 S.E. 161 (1916); Helmer v. Helmer, 159 Ga. 376, 125 S.E. 849, 37 A.L.R. 1137 (1924); Clark v. Bridges, 163 Ga. 542, 136 S.E. 444 (1927).
Manifestation of an intention to make a present gift to another, and, in consummation of this intention, delivery of the property to or for the use of the intended donee, or some act indicating a renunciation of dominion in favor of the intended donee, are essentials of a gift, whether inter vivos or causa mortis. Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932).
To make a valid gift there must be a present intention to give, and a complete renunciation of right, by the giver, over the thing given, without power of revocation, and a full delivery of possession as a gift inter vivos. Drake v. Wayne, 52 Ga. App. 654, 184 S.E. 339 (1936); Bowen v. Holland, 182 Ga. 430, 185 S.E. 720 (1936); McLendon v. Johnson, 69 Ga. App. 214, 25 S.E.2d 53 (1943); Upchurch v. Upchurch, 76 Ga. App. 215, 45 S.E.2d 855 (1947); Guest v. Stone, 206 Ga. 239, 56 S.E.2d 247 (1949); Stewart v. Stewart, 228 Ga. 517, 186 S.E.2d 746 (1972); Scott v. Stroud, 186 Ga. App. 869, 369 S.E.2d 51 (1988); NeSmith v. Ellerbee, 203 Ga. App. 65, 416 S.E.2d 364 (1992).
It is generally settled that there must be a present intention to give, full completion and execution of the gift by the donor, and acceptance of the gift by the donee, and furthermore that the donor must have renounced all dominion over the subject-matter of the gift in order to make the transaction binding. Mashburn v. Wright, 204 Ga. App. 718, 420 S.E.2d 379 (1992).
In a divorce, a husband's claim that a sum the husband received from the father's corporation was a gift, he did not satisfy the burden of proving this assertion because: (1) while the father testified it was a gift, both the father and the corporation's accountant admitted it was paid to the husband as compensation; (2) the corporation prepared a tax form identifying the payment as compensation; (3) the father signed the appropriate tax return taking the payment as a tax deduction for monies paid to the husband; (4) no gift tax was paid on the payment, nor was a gift tax form reflecting the payment prepared or filed; and (5) the husband accepted the payment as compensation and so listed it on the husband's tax returns. Brock v. Brock, 279 Ga. 119, 610 S.E.2d 29 (2005).
Possession remaining with donor.
- When it appears that the donor has relinquished all dominion and control over property as owner and parted absolutely with title, the mere fact that the donee allows possession to remain with the donor will not necessarily defeat the gift. Mashburn v. Wright, 204 Ga. App. 718, 420 S.E.2d 379 (1992).
Unconditional delivery evidenced.
- Jury was authorized to believe plaintiff's testimony that the certificate of deposit was in decedent's home only because plaintiff left the certificate with decedent for safekeeping. The jury concluded from this and other evidence that the decedent had unconditionally surrendered dominion over the certificate of deposit during the decedent's life. Mashburn v. Wright, 204 Ga. App. 718, 420 S.E.2d 379 (1992).
Gift operates immediately.
- Gift inter vivos operates, if at all, in the donor's lifetime, immediately and irrevocably. It is a gift executed, and no further act of parties, no contingency of death or otherwise, is needed to give the gift effect. Drake v. Wayne, 52 Ga. App. 654, 184 S.E. 339 (1936); Guest v. Stone, 206 Ga. 239, 56 S.E.2d 247 (1949).
Delivery of property subject to be reclaimed by the donor at any time prior to the donor's death, or if full control or power over the property or fund vests in the donee only after the death of the donor, this does not constitute a valid gift inter vivos. Drake v. Wayne, 52 Ga. App. 654, 184 S.E. 339 (1936); Guest v. Stone, 206 Ga. 239, 56 S.E.2d 247 (1949); NeSmith v. Ellerbee, 203 Ga. App. 65, 416 S.E.2d 364 (1992).
Burden of proof.
- Burden is on the person claiming a gift to prove all the essential elements of a gift by clear and convincing evidence. Upchurch v. Upchurch, 76 Ga. App. 215, 45 S.E.2d 855 (1947); Hise v. Morgan, 91 Ga. App. 555, 86 S.E.2d 374 (1955); McGrew v. Cooper, 110 Ga. App. 347, 138 S.E.2d 453 (1964); Parker v. Peavey, 198 Ga. App. 694, 403 S.E.2d 213 (1991).
Burden is upon person alleging title by reason of gift to prove all essential elements of gift (intention of the donor, acceptance, and delivery) by clear and convincing evidence. Freeman v. Freeman, 162 Ga. App. 433, 291 S.E.2d 770 (1982); Smith v. Fleming, 183 Ga. App. 342, 358 S.E.2d 900 (1987).
Party seeking to prove title by gift must do so by clear and convincing evidence. Mashburn v. Wright, 204 Ga. App. 718, 420 S.E.2d 379 (1992).
Presumption of gift not rebutted.
- Check from parents, who formed a limited partnership, given to their child for a large sum was properly determined to have been a gift from the parents pursuant to O.C.G.A. §§ 44-5-80 and44-5-84, rather than a loan; the presumption under O.C.G.A. § 44-5-84, together with other supportive circumstantial evidence, including that there was no contract or lending and no repayment had been required, provided support for that factual finding. Baker v. Baker, 280 Ga. 299, 627 S.E.2d 26 (2006).
Presumption of undue influence applies to gifts.
- When a relationship of dominance of one party exists, as is ordinarily the case when there is a fiduciary or confidential relation between the parties, the courts of equity hold that it raises a presumption of undue influence and throws upon the dominant party the burden of establishing the fairness of the transaction and that it was the free act of the other party. This principle has been generally applied to cases of settlements of property, especially gifts. Spikes v. Spikes, 89 Ga. App. 139, 79 S.E.2d 21 (1953).
Assignment of insurance policy as gift.
- When a brother then single took out insurance and made his sister the beneficiary and gave her the policy, but later married and desired to make his wife beneficiary, the gift to the sister was not perfected so as to be absolute and irrevocable and the insured had the right to change the beneficiary. Nally v. Nally, 74 Ga. 669, 58 Am. R. 458 (1885).
Verbal assignment of a policy of life insurance by the insured, accompanied by words indicating an intention to give, and by a delivery of the policy, does not constitute a complete gift. Steele v. Gatlin, 115 Ga. 929, 42 S.E. 253, 59 L.R.A. 129 (1902).
Donor taking title in trust as gift.
- When a parent purchases lands with the parent's own funds, and causes title to be made by the vendor to the parent as trustee for a minor daughter, this, in the absence of any valuable consideration as between these two, is equivalent to a gift of the land by the parent to the daughter. Cohen v. Parish, 105 Ga. 339, 31 S.E. 205 (1898).
Parol gift of land.
- Parol gift of land without more is ineffectual to pass title to the donee. Thaggard v. Crawford, 112 Ga. 326, 37 S.E. 367 (1900).
To constitute a valid parol gift of land, it is necessary that the donee take possession under the gift, and that the donee make valuable improvements thereon upon the faith of the donor's promise, or declared intention, to make the gift. Frady v. Irvin, 245 Ga. 307, 264 S.E.2d 866 (1980); Whitmire v. Watkins, 245 Ga. 713, 267 S.E.2d 6 (1980).
Failure to allege improvements invalidates gift of land.
- When a petition alleging that the plaintiff claimed title to certain lands under a parol gift from the plaintiff's father, construed most strongly against the petitioner, failed to allege that certain valuable improvements made by the plaintiff were made in pursuance of the terms of the gift during the lifetime of the alleged donor, it consequently failed to allege a completed gift. Kerr v. Kerr, 183 Ga. 573, 189 S.E. 20 (1936).
Cited in Porter v. Allen, 54 Ga. 623 (1875); Jones v. Robinson, 172 Ga. 746, 158 S.E. 752 (1931); Aultman v. Gibson, 172 Ga. 877, 159 S.E. 285 (1931); Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 7 S.E.2d 737 (1940); Knight v. Wingate, 205 Ga. 133, 52 S.E.2d 604 (1949); Jackson v. Jackson, 206 Ga. 470, 57 S.E.2d 602 (1950); Berry v. Berry, 208 Ga. 285, 66 S.E.2d 336 (1951); State v. Hiers, 210 Ga. 348, 80 S.E.2d 308 (1954); Swann v. Morris, 212 Ga. 460, 93 S.E.2d 673 (1956); Abney v. West, 101 Ga. App. 450, 114 S.E.2d 149 (1960); Wallace v. Moore, 219 Ga. 137, 132 S.E.2d 37 (1963); Law v. State, 121 Ga. App. 106, 173 S.E.2d 98 (1970); Leachmon v. Leachmon, 239 Ga. 780, 238 S.E.2d 863 (1977); Crymes v. Crymes, 240 Ga. 721, 242 S.E.2d 30 (1978); Talmadge v. Talmadge, 241 Ga. 609, 247 S.E.2d 61 (1978); Gregory v. Gregory, 252 Ga. 154, 312 S.E.2d 313 (1984); Scarbrough v. Honea, 174 Ga. App. 736, 331 S.E.2d 80 (1985); Ansley v. Sunbelt Invs. Realty, Inc., 176 Ga. App. 693, 337 S.E.2d 448 (1985); Hawes v. Emory Univ., 188 Ga. App. 803, 374 S.E.2d 328 (1988); Avera v. Avera, 268 Ga. 4, 485 S.E.2d 731 (1997).
Intent
Intention to make present gift required.
- Necessary intention to give by the donor is the intention to make a present gift of the property, that is to transfer some present immediate interest, as distinguished from a mere intention to give in the future, or from a gift testamentary in character. Cannon v. Williams, 194 Ga. 808, 22 S.E.2d 838 (1942); Tucker v. Addison, 265 Ga. 642, 458 S.E.2d 653 (1995).
No intent to make present gift.
- Decedent did not have the requisite intent to make an inter vivos gift of the decedent's certificates of deposit since the decedent had no intention to make a present gift of the certificates. NeSmith v. Ellerbee, 203 Ga. App. 65, 416 S.E.2d 364 (1992).
Lack of intent negates gift.
- Although there was delivery by the plaintiff and acceptance by the defendant, the transaction fell short of the elements of gift since there was no present intention to give. Gostin v. Scott, 80 Ga. App. 630, 56 S.E.2d 778 (1949).
Intention alone insufficient.
- To make the gift a valid one, it is not sufficient to show an intention to give; this intention must in all cases be followed either by manual delivery or some act indicating delivery. Burt v. Andrews, 112 Ga. 465, 37 S.E. 726 (1900).
No particular form of words is necessary in making a gift as any language indicating an intention to give is sufficient. Ball v. Wallace, 32 Ga. 170 (1861).
Intention to give must be expressed. Culpepper v. Culpepper, 18 Ga. App. 182, 89 S.E. 161 (1916).
Verbal expression is not necessary to prove an intention to give. Barfield v. Hilton, 238 Ga. 150, 231 S.E.2d 755 (1977).
Intention may be ascertained other than by words.
- Intention to give may be ascertained or may be made apparent or conveyed to the donee in other ways than by the use of verbal or written language. In some circumstances even the silence of a party may be evidence. Barfield v. Hilton, 238 Ga. 150, 231 S.E.2d 755 (1977).
Subsequent acts and conduct admissible to show intention.
- While intention at the time of the conveyances of the property controls and subsequent events cannot cut down an absolute gift to a trust, subsequent acts and conduct are admissible to show intention at the time of the transaction. Ashbaugh v. Ashbaugh, 222 Ga. 811, 152 S.E.2d 888 (1966).
Proof of intention may be based on prior statement.
- There may be a gift although proof of the existence of the intention at the time the gift is consummated may depend upon an utterance antedating the actual consummation of the gift by delivery. Mims v. Ross, 42 Ga. 121 (1871); Culpepper v. Culpepper, 18 Ga. App. 182, 89 S.E. 161 (1916); Helmer v. Helmer, 159 Ga. 376, 125 S.E. 849, 37 A.L.R. 1137 (1924); Clark v. Bridges, 163 Ga. 542, 136 S.E. 444 (1927).
Declarations of donor.
- When the circumstances are not such as to negative delivery of a gift, declarations of the donor that the donor has given personal property to another living on the premises with the donor are sufficient to authorize a recovery by the donee. Banks v. Harvey, 98 Ga. App. 196, 105 S.E.2d 341 (1958).
Deposit in account without delivery of passbook may lack intent.
- Mere fact of the deposit of money in the name of a third person without the delivery of the passbook, or other evidence of intention to make a gift will not constitute a valid gift inter vivos, since this may have been done for any one of a number of reasons, each without donative purpose. Ward v. Sebren, 242 Ga. 782, 251 S.E.2d 524 (1979).
Question of intention is for the jury.
- See Roberts v. Griffith, 112 Ga. 146, 37 S.E. 179 (1900).
Acceptance
Gift is incomplete until acceptance, and until acceptance, the gift is revocable and passes no title. Pooser v. Norwich Union Fire Ins. Soc'y, Ltd., 51 Ga. App. 962, 182 S.E. 44 (1935).
Acceptance by the donee imports an actual acquiescence on the donee's part, except as provided in § 44-5-81. Cannon v. Williams, 194 Ga. 808, 22 S.E.2d 838 (1942).
Delivery
For real property, delivery of valid deed accomplishes delivery.
- For real property, delivery is accomplished by delivery of an otherwise valid deed; delivery of the property itself is not required. McLemore v. Wilborn, 259 Ga. 451, 383 S.E.2d 892 (1989).
Failure of delivery invalidates gift.
- When a client directed the client's attorney to hold all moneys which the attorney might collect on a judgment, and to deliver this money to the client's nephew or the nephew's guardian as soon as one should qualify, and when the client died before the attorney had paid over these funds to the nephew or to the nephew's guardian, there was no valid gift of this money by the client to the nephew for lack of delivery of the subject matter of the gift to the donee. Rogers v. Carter, 177 Ga. 605, 170 S.E. 868 (1933).
Decedent's acts of signing the signature cards and transferring the documents evidencing the certificates of deposit to the donee did not constitute a valid inter vivos gift because ownership of the certificates could not be transferred in that manner. NeSmith v. Ellerbee, 203 Ga. App. 65, 416 S.E.2d 364 (1992).
Gift evidenced by writing dispenses with delivery.
- Gift of personalty by parol must be accompanied by delivery and acceptance of the article given, and while a gift evidenced by an ordinary writing (as distinguished from a specialty) dispenses with the necessity for a delivery of the article, such a writing does not ordinarily, in the absence of actual or constructive delivery, dispense with the necessity for a "good consideration." Trustees of Jesse Parker Williams Hosp. v. Nisbet, 189 Ga. 807, 7 S.E.2d 737 (1940).
Delivery of keys is constructive delivery of object.
- Delivery of keys to personal property accompanied by a declaration that the donor is giving the property to the donee is sufficient evidence to sustain a finding that there has been a constructive delivery of the object. Banks v. Harvey, 98 Ga. App. 196, 105 S.E.2d 341 (1958).
Deposit in joint account insufficient delivery.
- Deposit of money in a bank in a joint checking account subject to demand of another when the depositor also retains the right to jointly or severally demand and receive the funds so deposited, nothing else appearing, is not such a surrender of dominion over the funds thus deposited as to satisfy the requirements of delivery for the making of a gift. Stewart v. Stewart, 228 Ga. 517, 186 S.E.2d 746 (1972).
Deposit in safe deposit box insufficient delivery.
- Deposit by the decedent of bearer bonds in a safe deposit box to which the decedent, the decedent's spouse, and child had access did not make an inter vivos gift to either the decedent's wife or child since there was no delivery as the decedent retained access to the box and could have removed the bonds at any time. Dismuke v. Abbott, 233 Ga. App. 844, 505 S.E.2d 58 (1998).
Although a niece was a joint tenant with a decedent on the lease of a safe deposit box, there was no evidence that an inter vivos gift of the contents of the box was made to the niece under O.C.G.A. § 44-5-80 since the decedent retained access to the box, and the contents were subject to being reclaimed by the decedent at any time prior to the decedent's death. Furthermore, there was no evidence that full control or power over the property vested in the niece before the decedent's death or that the decedent renunciated dominion and transferred the property to the niece. Longstreet v. Decker, 312 Ga. App. 1, 717 S.E.2d 513 (2011).
Delivery of chattels in sale of realty.
- When chattels are delivered to the vendee of realty subsequent to the sale thereof, upon the vendee's representation that the chatels were included in the sale, when in fact the chatels were not so included, such delivery does not constitute a gift of the chattels. Gostin v. Scott, 80 Ga. App. 630, 56 S.E.2d 778 (1949).
Transfer of stock without delivery of certificates insufficient.
- Transfer of stock to an educational institution, without delivery of the certificates, does not constitute a gift; transfer is only a prima facie evidence of delivery. Southern Indus. Inst. v. Marsh, 15 F.2d 347 (5th Cir. 1926), cert. denied, 273 U.S. 747, 71 L. Ed. 872, 47 S. Ct. 449 (1927).
Delivery of commercial paper without endorsement or assignment.
- All kinds of personal property which are capable of manual delivery and of which the title either legal or equitable can be transferred by delivery may be the subject matter of a valid gift; accordingly, as to promissory notes, bills of exchange, checks, bonds, and other like choses in action, the equitable title to which may be transferred in the manner indicated, the gift may be sustained, even though the instruments are delivered without endorsement or assignment. Underwood v. Underwood, 43 Ga. App. 643, 159 S.E. 725 (1931).
Delivery of forgiveness of debt.
- Debt may be the subject of a gift by the creditor to the creditor's debtor, and is generally referred to as a forgiveness of the debt. The delivery may be accomplished by giving a receipt, even though not under seal and the debt is evidenced by a specialty, by surrendering the instrument evidencing the debt, or even by destroying it, if this is done with intent to cancel the debt; the fact that the creditor reserves the right to interest on the debt does not affect the validity of the gift. Croxton v. Barrow, 57 Ga. App. 1, 194 S.E. 24 (1937).
Receipt issued by the creditor may constitute a gift of the debt. This is particularly true if the subject matter is not a physical thing, but is intangible because, being intangible, it is not susceptible of actual delivery. Croxton v. Barrow, 57 Ga. App. 1, 194 S.E. 24 (1937).
Oral statement releasing debt insufficient.
- An oral statement made by the payee to the maker of a note, that the payee releases the maker from the debt evidenced by the note was insufficient as a contract canceling the obligation or as a gift to the maker of the note, where the payee received no consideration for the promise to release the maker and there was no actual delivery or surrender of the note to the maker, or anything done which the law accepts in lieu of actual delivery. Taylor v. Taylor, 45 Ga. App. 735, 165 S.E. 858 (1932).