INTRODUCTION
Our client, Erin Smith, believes that her Aunt, Julie Cook, gifted her a boat. Cook recently died, and the executor of her estate told Smith there was no mention of the boat in the will. The boat passed by law to Cook’s daughter Marisa. Smith would like us to determine her legal right to the boat through an inter-vivos gift under Maryland law.
As explained below, Smith cannot prove complete delivery due to insufficient evidence satisfying this element of an inter-vivos gift. Because Smith never established absolute dominion over the boat when Cook gifted it to Smith, nor acquired any symbol of the boat such as keys or a pink-slip, she cannot prove constructive delivery. Consequently, a court is likely to find she failed the element …show more content…
A valid inter-vivos gift is established by three elements: an intention on the part of the donor to transfer the property, a delivery by the donor and acceptance by the donee. Rogers v. Rogers, 319 A.2d 119, (Md. 1974). Additionally, an inter-vivos gifts must be established by, “explicit and convincing evidence,” to prevent fraudulent claims Id. at 121. This memo will focus on the delivery element.
Delivery may be actual, or constructive. Actual delivery consists of physically delivering the property to the donee. Estate of Genecin v. Genecin, 363 F. Supp. 2d. 306, 319 (D. Conn 2005). However, Smith never took possession of the boat and therefore did not complete actual delivery. Accordingly, Smith must prove constructive delivery.
Courts have allowed sizable gifts to be delivered symbolically through constructive delivery. Id. at 320. Constructive delivery occurs when the donor delivers a symbol of the gift that when placed in the donee’s possession grants complete control of the property. Schenker v. Moodhe, 200 A. 727, 728 (Md. 1938). However, the delivery must be as nearly perfect and complete as the nature of the property, which may include: keys to a safety deposit box, an insurance policy, the key to a trunk. Id. at 728-29. Additionally there cannot be reserved to the donor a power to revoke the dominion over the subject of the gift. Rogers, 319 A.2d at …show more content…
However, unlike Rogers, where the stock certificate was not in the wife’s possession but in an agent’s for a limited purpose, the boat was never transferred to Smith. From when the email was sent to Cook’s death, Cook was free to use the boat at her leisure just as she had before gifting the boat to Smith; thus she did not transfer complete control. This was not the case in Rogers where the stock certificate was in the dominion of the wife despite the transfer back to her husband. Although there had been overlap of possession between Smith and Cook during winterization, as seen in Rogers, Cook never intended to perform as Smith’s