Section 20.18 Gifts

• Library: Estate Administration 2014 Supp

6. (§20.18) Gifts

Challenges to alleged gifts are often the subject of discovery-of-assets actions. The elements of a valid gift are:

· the donor’s present intention to make a gift;

· the donor’s delivery of the property to the donee; and

· the donee’s acceptance and immediate and absolute ownership.

In re Estate of Evans, 614 S.W.2d 315, 317 (Mo. App. W.D. 1981); In re Estate of Hoffman, 490 S.W.2d 98, 102 (Mo. 1973).

The standard of proof is clear, cogent, and convincing evidence. Evans, 614 S.W.2d at 317; In re Estate of Passman, 537 S.W.2d 380, 384 (Mo. banc 1976); Duvall v. Henke, 749 S.W.2d 714 (Mo. App. E.D. 1988). “[W]here a gift is not asserted until after a donor’s death, it is viewed with some suspicion, and the requirement of clear and convincing proof . . . is particularly applicable.” In re Estate of Petersen, 295 S.W.2d 144, 150 (Mo. 1956).

A comparison of Evans, 614 S.W.2d 315, and Hoffman, 490 S.W.2d 98, illustrates the elements required to make a valid gift and the level of proof required. In Evans, the decedent, Levi Evans, during his lifetime, had transferred virtually all of his assets to his brother and sister-in-law. The administrator of the estate, the decedent’s other brother, brought an action to discover assets, alleging that Levi had not intended to transfer ownership but was merely attempting to avoid a judgment creditor. The evidence at trial established that Levi had suffered a judgment against him for $24,000. Thereafter, Levi contacted his brother, Paul—now the administrator—advised him of the judgment, and transferred $3,000 to Paul for safekeeping. A short time later, Levi transferred $45,385 to his other brother, James, and...