The holidays are upon us. Soon children will be writing their letters to Santa and imagining what treasures might be left under the Christmas tree. Over the next several weeks, people of all ages will be trying to come up with the perfect gift idea, the one that will make a child squeal with delight, an older parent weep with gratitude, a less-fortunate person feel loved, or, perhaps, a significant other fall in love again with the giver. Whatever a person’s opinions are regarding the commercialism of the holidays, most people agree that giving is a good thing, and hopefully the help of a litigation attorney would never be needed to sort it all out!
So what is it that makes a gift a gift? Well, it turns out there are laws that define when something is considered a gift and therefore the property of the person receiving it. In Arizona, a person makes a gift of their property when they satisfy two requirements:
- they manifest a clear and unmistakable intention to give the property to another, and
- they pass full possession and control of the property to the person for whom the gift is intended.
The absence of one of these requirements will defeat the receiver’s claim that a gift was made. But if both requirements are met, the giver of the gift cannot take it back.
Questions of whether or not a gift was made do not typically arise from presents from Santa. (As even a child can understand, if Santa left a package with your name on it, he both intended to make the gift and gave you possession and control of it). But the issue does arise in other contexts. For example, courts have decided many cases related to whether money deposited into a bank account or a piece of real estate (such as a house on 34th Street) was intended as a gift. The evidence may be conflicting, but always the courts are trying to determine if the two requirements noted above are present. If not, then the person claiming the gift may be forced to return it.
Other rules apply to gifts to be made at the time of the giver’s death, such as through a will. Despite an expressed intent to give a gift upon death, the giver can revoke the gift any time before passing away. Also, a gift may be voided by a showing of fraud or duress. (This doesn’t mean you should take away your child’s presents if you learn after the fact that he or she wasn’t “good for goodness sake”).
None of this is likely to change your gift-giving practices this season. But if you do encounter a serious question related to the law of gifts, please feel free to contact us at (480) 496-2086 and we will be happy to help.