Gift (law)

Gift (law)

A gift, in the law of property, is the voluntary transfer of property from one person (the donor or grantor) to another (the donee or grantee) without full valuable consideration. In order for a gift to be legally effective, the donor must have intended to give the gift to the donee (donative intent), and the gift must actually be delivered to and accepted by the donee.

Gifts can be either:

  • lifetime gifts (inter vivos gift, donatio inter vivos) - a gift of a present or future interest made and delivered in the donor's lifetime; or
  • deathbed gifts (gift causa mortis, donatio mortis causa) - a future gift made in expectation of the donor's imminent death. A gift causa mortis is not effective unless the donor actually dies of the impending peril that he or she had contemplated when making the gift, i.e. these gifts can only be made when the donor is in a terminable condition.

Gifts can also be:

  • outright - made free of any restrictions, such as being subject to a trust;
  • onerous - made with a burden or obligation imposed on the donee; or
  • remunerative - made to compensate for services rendered

Contents

Intention

The donor of the gift must have a present intent to make a gift of the property to the donee. A promise to make a gift in the future is unenforceable, and legally meaningless, even if the promise is accompanied by a present transfer of the physical property in question.

Suppose, for example, that a man gives a woman a ring and tells her that it is for her next birthday and to hold on to it until then. The man has not made a gift, and could legally (albeit inadvisedly) demand the ring back on the day before the woman's birthday. In contrast, suppose a man gives a woman a deed and tells her it will be in her best interest if the deed stays in his safe-deposit box. The man has made a gift and would be unable to legally reclaim it.

Delivery

The gift must be delivered to the donee. If the gift is of a type that cannot be delivered in the conventional sense - a house, or a bank account - the delivery can be effected by a constructive delivery, wherein a tangible item allowing access to the gift - a deed or key to the house, a passbook for the bank account - is delivered instead. Symbolic delivery is also sometimes permissible where manual delivery is impractical, such as the delivery of a key that does not actually open anything, but is intended to symbolize the transfer of ownership.

Certain forms of property must be transferred following particular formalities described by statute law. In England, real property must be transferred by a written deed (s. 52, Law of Property Act (1925)). The transfer of equitable interests must be performed in writing by the owner or their agent.

A gift is assumed when property owner deeds real estate as joint tenants with rights of survivorship. Regardless of contribution to purchase price, such a deed guaranteees each tenant equal shares upon sale or partition of the property.

Acceptance

The donee must accept the gift in order for the property transfer to take place. However, because people generally accept gifts, acceptance will be presumed, so long as the donee does not expressly reject the gift. A rejection of the gift destroys the gift, so that a donee cannot revive a once-rejected gift by later accepting it. In order for such an acceptance to be effective, the donor would have to extend the offer of the gift again.

Revocation

A donor may revoke a future gift, however a gift delivered and accepted cannot be revoked.

Gift Taxation In India

In India, previously there was Gift Tax Act under which donor had to pay the gift tax on the amount of gift. However, the said Act has been abolished and from FY 2004-05, a new provision was inserted in the Income Tax Act (1961) under section 56 (2) which provides that if the gift is received by an individual or Hindu undivided family from any relatives or blood relatives or at the time of marriage or as inheritance or in contemplation of death and the aggregagte of gifts received exceeds Rs 50,000 in a year, the gift will be taxable as income from other source. For the United States see Gift tax in the United States.

See also


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Look at other dictionaries:

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