Frank had a problem: he was not sick enough.
Frank was 78 years old and had never been married. There were two women in his life: sister Lecadia, with whom he lived with and supported his entire adult life; and Adela, whom he raised as if she were his own daughter.
Frank had a certificate of deposit worth more than $67,000. Lecadia and Adela were listed as co-owners. Frank went to the vice president of the bank and told her he wanted his name taken off the CD. He signed a relinquishment form removing his right to the money represented by the CD. He later signed a lost certificate affidavit allowing Adela to withdraw the money.
Sounds like Frank had gifted his interest in the certificate of deposit to Adela, right? Not so fast.
Gift Causa Mortis: What Is It?
The following summer Frank demanded the money back from Adela. He said that he had made a “gift causa mortis” to Adela that failed because he had not died.
A gift causa mortis is one made by a person in contemplation of death from a present illness or anticipated peril. It must be shown that the donor intends the gift to take effect if he should die shortly afterward, but that if he recovered then the property should be restored to him.
Proving a Gift Causa Mortis
The gift must be made when the donor has a peculiar sickness, peril, or danger. A general apprehension of death from the mortality of men is not enough.
Frank argued he had back problems, prostate problems, anemia, fainting spells, and pain in his chest. He feared he would die if he went into the hospital.
Unfortunately for Frank, he had no immediate plans to go into the hospital. None of his problems portended imminent death.
The court ruled that Frank had not made a gift causa mortis, and Adela got to keep the money.
How a Gift Causa Mortis Works After Death
J.G. McGrede’s problem was a bit different: he was dead. His ex-wife, Gladys, claimed that he had given her the contents of his safe deposit box a mere two days before his death as a gift causa mortis.
J.G.’s executor begged to differ.
J.G. had been wealthy. He had married Gladys when he was a grandfather, and she was a much younger woman. They divorced, but then sometime later they began to associate again. He gave her a home, automobiles, life insurance, and money. Gladys acted as his housekeeper and chauffeur in exchange for $100 per month.
J. G. made a will leaving all his property to his grandchildren. It was not until after he had died that Gladys said he had instructed John, his servant of many years, to give her the key to his safety deposit box.
Her story was not enough to convince the jury, and it was certainly not enough to convince the appellate court. Gladys lost.
Proving a Gift Causa Mortis
You may have noticed that proving a gift causa mortis is difficult. That is because the facts supporting it are almost impossible to prove.
A gift causa mortis requires that the donor has a present intent to make a gratuitous transfer to the donee, delivery by the donor to the donee, and acceptance by the donee. The donee must also prove that the gift was intended to be effective only if the donor died, but it should be returned if the donor survived.
As Frank and Gladys found, courts are hesitant to find that there is an effective gift causa mortis.
Hammerle Finley is Here to Help With Your Gift Causa Mortis
If you’re like Frank or J.G. and need to set up a gift causa mortis to avoid any future issues, our team of experts is here to help. Schedule a consultation today.
Virginia Hammerle is an accredited estate planner and represents clients in estate planning, probate, guardianship, and contested litigation. She may be reached at legaltalktexas@hammerle.com. This blog contains general information only and does not constitute legal advice.
