PROPERTY (807-2) PROFESSOR BRATT

ANSWER TO SAMPLE EXAM QUESTION #3

In order for Dear Friend to be successful, she will have to prove that Owner made a good gift causa mortis to her which was not thereafter revoked. Dear Friend will not assert that she received an intervivos gift because the words of the donor indicate clearly that he contemplated something other than an immediate, irrevocable gift of the coins. Therefore, this alleged gift will stand or fall under a gift causa mortis analysis. A donor must have present donative intent. In this case there is a problem with that requirement. The words of the donor ("If I do not survive the operation, the gold coins are yours . " ) express a condition precedent to the gift taking effect rather than a condition subsequent present in gifts causa mortis ("The gold coins are yours, but not if I survive the operation.")

Nonetheless, the donee will argue that this distinction is highly artificial and should be ignored. A slight change in the words used by the donee (or the memory of the witnesses) shifts the gift from an impermissible condition precedent (no present intent) to a permissible condition subsequent (present intent but gift subject to revocation). As the subject matter of this gift has been delivered (discussed below) and the intent of the donor to make some disposition of his property is clearly apparent it is too harsh to cut off his intent because he failed to put the transaction in the proper technical form.

Assuming a court will accept the intent argument, a delivery requirement must be met. Although actual delivery is preferred, constructive and symbolic delivery is permissible under appropriate circumstances. The latter is not involved here because nothing was delivered to the donee (i.e., a writing) to stand in the place of the gold coins. Constructive delivery, delivery of the means of obtaining access to the coins, is permitted when, because of the gift's location or size, actual delivery is impracticable or impossible. Because the donor was in the hospital and the coins were elsewhere, constructive delivery is permitted. However, the question is whether the court will accept the giving of the location as the equivalent of giving the keys to the safety deposit box. Regardless of whether the donee dug up the coins, the acceptance element is not a problem. Acceptance is presumed unless the donee affirmatively rejects the gift.

The final requirement for a valid gift causa mortis is whether the donor was in reasonable fear of imminent death from illness or injury. Obviously, a brain tumor would qualify as a illness in which a personcould reasonably fear death. Therefore, the court can find that a valid gift causa mortis was made.

This question also raises the issue of revocability of a gift causa mortis. Under the old common law rule, the donor had to die as anticipated or the gift was revoked. The modern trend is to treat the gift as not being revoked if the donor fails to recover. Under the latter approach, the exact cause of death is immaterial. Under either approach, it is possible to raise the argument that revocation does not happen automatically, but the donor must affirmatively take back the gift for revocation to occur. That didn't happen here.

In trying to determine the donee's probability of success, it must be remembered that courts do not like gifts causa mortis because of the potential for fraud and because such gifts defeat the policy underlying the requirement that gifts to take effect on death should be made in a properly executed will. Because of this antipathy, the donee must establish a gift causa mortis by clear and convincing evidence rather than the traditional "mere preponderance standard. This makes the donee's task harder. Furthermore, courts have a tendency to protect the "natural objects" of the donor's bounty. In this problem Dear Friend (a female) may not be viewed as an appropriate object of this Donor's (a male) bounty. This is especially true if blood relatives are significantly effected by upholding the gift. Also, the presents of a brain tumor may negate the donor's mental capacity to make any binding transaction. The court obviously has a number of malleable doctrines which will allow it to decide this case pretty much as it chooses.