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
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