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Editors' Synopsis: The Article discusses the evolution and current role of the delivery requirement for valid inter vivos gifts. The author examines the requirement's history, justifications, and exceptions, concluding that actual delivery is no longer required in order for a gift to be complete. The author argues that delivery is now treated as evidence of a donative intent, rather than as a separate element of a gift. As a result, the author suggests, courts are willing to state the concept of delivery to validate what is viewed as a desirable outcome.
I. INTRODUCTION
II. HISTORY AND JUSTIFICATIONS OF THE DELIVERY REQUIREMENT
III. CURRENT STATE OF THE DELIVERY REQUIREMENT
IV. DELIVERY'S CURRENT PURPOSES
V. IS DELIVERY'S DEMISE A GOOD THING?
VI. CONCLUSION
I. INTRODUCTION
A frequently litigated issue in the probate of estates is the content of the estate. Often, a family member or friend of the decedent will resist any attempt of the estate administrator to marshall the estate assets by claiming that the property the administrator seeks to recover was a gift from the decedent to the purported donee. This claim then requires the probate court to determine whether the property was actually the subject of a valid gift, thus removing the property from the estate. Essentially, the court must decide what is a gift, whether the facts satisfy the requirements of a gift, and whether the property should be in the estate.
The elements of a gift have been the subject of glacial change. It is time for lawyers and judges to recognize the true requirements for valid gifts. Over many centuries, courts have uniformly cited the need for an item to be delivered to the donee to effect a valid parol gift of chattels. The delivery requirement continues today and was reiterated as recently as 1992.1 A focus on what courts do and not on what courts say reveals that while courts uniformly cite the need for delivery to effect a valid gift, in reality courts manipulate the concept of delivery to arrive at the result they regard as most just. A review of reported cases in which the delivery requirement has been cited during the past thirty years suggests that delivery has become a judicial tool to enforce gifts the...