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12/05/13 It's The Law: A Gift By Any Other Name

lt's The Law

A Gift By Any Other Name



It is that time of year. I do not believe in Santa Claus, but I believe my fiancé should give me the gift she promised. She got mad at me and says she took it back to the store. What's the rule on gifts?


The "rule" on gifts is relatively simple. If a gift has been completed, the recipient owns the gift. A "promise" to make a gift is not generally enforceable. But, there are exceptions.

If a completed gift was obtained by fraud, or undue influence, or if the donor was incompetent at time of the gift, the gift can be undone. Competency is somewhat subjective. Undoing the gift will require establishing the giver did not understand the value of the property or who would be considered the natural recipient of his or her assets.

A gift can also be set aside if the giver suffered from a delusion such that he or she did not truly know what was being done. A gift will not necessarily be set aside if the giver was under the influence of alcohol or drugs. But, if the giver's mental condition was so impaired as to render him or her unable to transact business, chances for setting aside increase significantly.

A gift may be set aside if it was the product of undue influence. Undue influence usually involves a confidential relationship and the exertion of influence by one over another to make a gift that would not normally have been made. Establishing undue influence will usually also require establishing that the donor suffered from some weakness or diminished capacity.

One often overlooked requirement of a completed gift is acceptance by the recipient. Acceptance may be expressed or implied, but a donor cannot force a recipient to accept a gift. That might be something to remember if you get something that will cost you more to maintain or own.

In some cases, a gift is promised if the recipient will take certain action. A grandfather might promise his grandson a stipend if the grandson does not smoke or drink alcohol before 21 years of age. Those cases are more in the nature of contract than gift, and if the promised recipient performs, he or she may have a claim for payment even if the donor changes his or her mind.

Engagement rings are conditional gifts. They are given in contemplation of marriage. If the marriage is called off by the recipient or by mutual consent, the ring is to be returned to the giver. If the marriage is called off by the giver, the recipient generally keeps the ring. I mentioned the engagement ring issue as one which you may face in the event your situation worsens.

A gifter is usually able to change his or her mind before the gift is made – but not always. If a promised recipient has significantly changed position in reliance or the promise (i.e., spent a lot of money or sold other assets expressly to replace with the gift), it is possible the gifter may be liable for damages or even the gift.

As for your fiancé returning your gift to the store, I am afraid you are out of luck. She has that right, unless you have materially changed your position in reliance upon her promise of the gift. You need to either patch up your relationship or buy the gift for yourself.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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