Also known as: testamentary gifts · gift by will
Written by attorneys · grounded in primary & secondary sources — see below
A disposition of property made effective by a will upon the testator's death. The gift vests according to the terms of the instrument and is subject to statutory formalities for execution of wills.
Theo Thomas, an elderly client, asked his lawyer Paul to prepare a will leaving a substantial portion of his estate to Paul. Paul drafted and supervised execution of the instrument containing the bequest. The client later sought to enforce the will against the estate, but the bequest was held invalid because Paul was not related to the client.
Tessa Takahashi's father left her a testamentary gift of stock in his will on the condition that she marry a woman of Jewish faith within seven years. Tessa challenged the condition as contrary to public policy. The court upheld the gift because the condition did not require divorce or separation from an existing spouse and was therefore enforceable.
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Tamara Tan's will devised her office building to her daughter for life with remainder to a redevelopment authority. Upon the testator's death the daughter immediately asserted her possessory rights. The court recognized the life estate as a present interest created by the testamentary gift and ordered prior occupants to vacate.
A testamentary gift takes effect only upon the donor's death and must satisfy the formal requirements of a will. An inter vivos gift requires present intent, delivery, and acceptance while the donor is alive.
No. Model Rule 1.8(c) prohibits a lawyer from preparing an instrument giving the lawyer or a related person any substantial testamentary gift unless the recipient is related to the client. Violation imputes to the entire firm under Rule 1.8(k).
Yes. Under typical marital property statutes a gift or testamentary disposition from a third party to one spouse alone is classified as individual property even if acquired during marriage.
Courts adopt the construction that renders the testamentary gift valid rather than void when the language is reasonably susceptible to more than one reading.
…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 make an irrevocable present transfer of ownership; if the intention is to make a testamentary disposition effective only after death,…