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DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED.

The Second Department determined the claim that a loan made by decedent was orally converted to a gift (by the decedent) was not demonstrated. The proof sufficient to prove a gift was laid out by the court:

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… [T]he plaintiff submitted evidence that the decedent made a loan to the defendant in February 2010 for $50,000, which he did not repay. Contrary to the determination of the court, the defendant’s testimony at his deposition that the decedent told him in 2012 that the loan was “a gift,” without more, does not raise a material issue fact sufficient to defeat the plaintiff’s entitlement to judgment. “It has long been the rule in this State that a debt owing from one party to another will not, by a mere oral declaration subsequently made, be transformed from a debt to a gift” … . To make a valid gift, ” the donor must intend to make an irrevocable present transfer of ownership, there must be delivery of the gift, either by physical delivery of the subject of the gift or a constructive or symbolic delivery, and there must be acceptance by the donee”‘ … . “[I]n the case of an oral gift, the fact of delivery serves to assist, in an evidentiary manner, to confirm the intent of the donor, and to prevent the assertion of fraudulent claims” … . Thus, while the defendant’s allegation provides evidence of the decedent’s intent to make a gift of the loan amount, it provides no evidence that the gift was delivered and, consequently, that the gift took effect … . Scotti v Barrett, 2017 NY Slip Op 03031, 2nd Dept 4-19-17

TRUSTS AND ESTATES (DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED)/GIFTS (TRUSTS AND ESTATES, DEFENDANT DID NOT DEMONSTRATE A LOAN WAS ORALLY CONVERTED TO A GIFT BY DECEDENT, CRITERIA FOR PROOF OF A GIFT EXPLAINED)

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