Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Sunday, November 30, 2014

What is a gift, legally speaking


CLAIM THAT TRANSFERRED PROPERTY WAS A GIFT: ELEMENTS OF PROOF
   
“A gift is a transfer of property made voluntarily and gratuitously, without consideration.” In re Marriage of Skarda, 345 S.W.3d 665, 671 (Tex. App.—Amarillo 2011, no pet.); see also Mora v. Mora, No. 04-12-00638-CV, 2014 WL 769441, at *7 (Tex. App.—San Antonio Feb. 26, 2014, no pet.) (mem. op.); Magness v. Magness, 241 S.W.3d 910, 912 (Tex. App.—Dallas 2007, pet. denied). 
  
“The existence of a gift requires sufficient proof of: (1) intent to make a gift; (2) delivery of the property; and (3) acceptance of the property.” In re Marriage of Skarda, 345 S.W.3d at 671; see also Mora, 2014 WL 769441, at *7; Magness, 241 S.W.3d at 912. “The intent of the donor is the principal issue in determining whether a gift was made.” In re Marriage of Skarda, 345 S.W.3d at 671; see also Mora, 2014 WL 769441, at *7.

PRESUMPTION ARISING FROM INTER-SPOUSAL TRANSFER OF REAL PROPERTY 

“A deed for property from one spouse as grantor to the other spouse as grantee creates a rebuttable presumption that the grantee spouse received the property as separate property by gift.” In re Marriage of Skarda, 345 S.W.3d at 671; see also Mora, 2014 WL 769441, at *7; Magness, 241 S.W.3d at 912. “The presumption may be rebutted by proof the deed was procured by fraud, accident, or mistake.” Magness, 241 S.W.3d at 912-13; see also Mora, 2014 WL 769441, at *7.  

INTERSPOUSAL GIFT - FACT ISSUE 
  
“Whether property given by one spouse to the other is a gift and the recipient’s separate property is a fact-intensive decision.” In re Marriage of Skarda, 345 S.W.3d at 671; see also Mora, 2014 WL 769441, at *7. The trial court, as the fact-finder in this case, is the sole judge of the credibility of the witnesses and may accept or reject any or all of a witness’s testimony. In re Marriage of Skarda, 345 S.W.3d at 672; see also Mora, 2014 WL 769441, at *7; Magness, 241 S.W.3d at 913. 
   
SOURCE: SANANTONIO COURT OF APPEALS - 04-14-00011-CV - 11/19/2014