Also known as: donative intent
Written by attorneys · grounded in primary & secondary sources — see below
The mental state accompanying a gratuitous transfer of property by which the transferor intends to convey ownership without receiving consideration in return. This intent distinguishes a gift from an exchange or an involuntary transfer. The requirement focuses on the purpose to relinquish dominion rather than on the underlying motive for the transfer.
Pioneer Transit informed its driver Rodney that the company wished to give him an older semi-truck upon retirement and permitted him to drive it home. No title documents changed hands and the company retained insurance and listed the truck as a fleet asset on a loan application. Rodney claims ownership through the company's statements and delivery of possession.
Victor Gruen wrote a letter to his son stating that he was giving the son a valuable Klimt painting but reserving a life estate for himself. The son never took physical possession during the father's lifetime. After the father's death the son sought delivery of the painting from the estate.
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Shortly before her death the decedent wrote a note directing that her savings account pass to her niece and left the note with her personal effects. The niece claimed the funds as a completed gift. The estate resisted on the ground that no delivery occurred.
Donative intent requires only that the transferor intend to pass ownership without consideration. Motive concerns the personal reasons behind the transfer and does not control whether a gift occurred.
Supporting sources
Acceptance by the donee is necessary for a gift to take effect. Acceptance is presumed when the donee takes possession without objection but the donee may still refuse or disclaim.
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Retention of indicia of ownership such as title documents and insurance can show that no ownership interest ever passed. Without an actual transfer of ownership the expression of donative intent alone does not complete a gift.
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Forgiveness of indebtedness constitutes a gift when made without consideration and with donative intent. When the debtor is a natural object of the creditor's bounty the running of the statute of limitations on a demand note raises a presumption of donative intent.
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…evidence ( Matter of Kelley, supra , at p 150; Matter of Abramowitz , 38 AD2d 387, 389-390, affd on opn 32 NY2d 654). Donative Intent There is an important distinction between the intent with which an inter vivas gift is made and the intent to make a gift by will. An inter vivas gift requires that the donor intend to…