Unfortunately, more and more litigation matters involve disputes between family members over inheritance and estate issues. Not all disputes center on the decedent’s Last Will and Testament. Often, the focus is on inter vivos gifts; i.e., gifts made during the lifetime of the decedent.
Inter vivos gifts have long been disfavored by New Jersey Courts and there must be strict compliance with all requirements for creating such gifts. The required elements needed to prove inter vivos gifts, as set forth in the New Jersey Supreme Court case of Pascale v. Pascale, are as follows:
The donor must perform some act constituting the actual or symbolic delivery of the subject matter of the gift;
The donor must possess the intent to give;
The donee must accept the gift.
Interestingly, the burden of proving an inter vivos gift shifts to the party that asserts the claim. The New Jersey Supreme Court has declared that the donee must show by explicit and convincing evidence that the donor intended to make a present gift and unmistakably intended to relinquish permanently the ownership of the subject gift. Only the understanding and absolute abnegation of power will make the alleged gift enforceable. If the judicial mind is left in doubt or uncertainty as to exactly what the status of the transaction was, the donee must be deemed to have failed the discharge on its burden and the claim of gift must be rejected. An additional element, imposed by New Jersey Courts, is that the donee must prove that the donor relinquished ownership and dominion over the subject gift.
With respect to the principal of undue influence, its application in inter vivos transfer litigation is different than when used in a will contest. In one case, the Appellate Division found that in an inter vivos transfer case where one is giving what one can still enjoy, the presumption of undue influence is raised more easily than in cases involving wills. Certainly, the proving of undue influence or the intent of a party to make an inter vivos gift and meeting the above requirements is extremely fact sensitive.
It is, of course, extremely sad when family members must resort to the Courts when a loved one has passed away. However, these issues bring about strong emotions and often become highly contentious and thus, Court involvement is the only way to bring about resolution.
Darrell M. Felsenstein is an Associate at WJ&L who practices in our Litigation area.