Often in disputes over an estate, the issue arises of whether someone received property as a gift or for some other reason. The person who makes a gift is called a “donor,” and the person who receives a gift is called a “donee.” Under Texas law, there are three basic elements of a gift:
- The donor must have intent to make a gift,
- The donor must deliver the property to the donee, and
- The donee must accept the gift.
The donee has the burden to prove that a transfer was a gift. It sounds fairly simple, but proving those elements can present problems for a donee.
Usually the issue of whether a transfer was intended as a gift arises in the estate of someone who has passed away or someone who no longer has the mental capacity to testify about the intent with which he or she transferred property. Because testimony from the donor is seldom available, proving intent of the donor can be problematic. The donor will need to collect and preserve evidence such as letters, emails, notes about conversations, or other records that would show that the donor intended to make a gift.
Delivery of the gift itself is not too difficult to show – either the donee received the property or not. But the element of delivery also includes showing that the donor intended to give away any rights he had in the property. For a transfer to be a gift, the donor must not have tried to exercise control over the property and cannot be able to revoke the transfer. The donee must have the legal right to possession and control of the gift property.
Finally, the donee must accept the gift. If the donee is the party attempting to prove that a gift was made, this element should not prove difficult.