O.C.G.A. § 44-5-100 (2019)

Annotations

JUDICIAL DECISIONS Distinguished from gift inter vivos. - Gifts inter vivos and gifts causa mortis differ in nothing except that the latter are made in the expectation of death, become effectual only on the death of the donor, and may be revoked. Philpot v. Temple Banking Co., 3 Ga. App. 742, 60 S.E. 480 (1908). Chief distinction between a gift inter vivos and a gift causa mortis is that a gift causa mortis while immediately passing a revocable, contingent interest, must be intended to pass the absolute title only in the event of death. As a consequence, it is the general rule that a gift causa mortis may be revoked at any time during life at the option of the donor; and the donor’s recovery from the particular illness or escape from the peril, in contemplation of which the gift was made, will of itself operate as a revocation. Cannon v. Williams, 194 Ga. 808, 22 S.E.2d 838 (1942). Revocable contingent interest in property. - Gift causa mortis carries an immediate though revocable contingent interest in the property, as distinguished from absolute title. The full title is intended to pass only in case of death. Higgs v. Willis, 205 Ga. 857, 55 S.E.2d 372 (1949). Donor must be in last illness. - If personal property be delivered by the owner to another for a third person with the intention of making a gift causa mortis at a time when the donor is not in the donor’s last illness, this, without more, would not be sufficient to effectuate the gift; but if the donor, while in the donor’s last illness and conscious of the approach of death, reaffirms the gift, and requests the person receiving the property to retain possession and deliver to the intended donee after the donor’s death, this would be the equivalent of a new delivery, taking effect from the time such request was made. Sorrells v. Collins, 110 Ga. 518, 36 S.E. 74 (1900). Transaction which did not occur during the last illness or while the deceased was in peril of death does not meet the requirements of a gift causa mortis. Guest v. Stone, 206 Ga. 239, 56 S.E.2d 247 (1949). Gifts must be absolute only in event of death. - Gift causa mortis must be intended to be absolute only in the event of death. Southern Indus. Inst. v. Marsh, 15 F.2d 347

(5th Cir. 1926), cert. denied, 273 U.S. 747, 71 L. Ed. 872, 47 S. Ct. 449 (1927). Alleged debt forgiveness was not a gift in contemplation of death if the gift was intended to be immediate. Harrison v. Martin, 213 Ga. App. 337, 444 S.E.2d 618 (1994). Delivery provable by circumstantial evidence. - Though the delivery of the article allegedly given must be proved, it may be proved by circumstantial as well as by direct evidence. Salmon v. McCrary, 71 Ga. App. 262, 30 S.E.2d 444 (1944). Delivery to third person valid. - In order to constitute a valid gift of personalty made by one in view of impending dissolution, it is not necessary that there should be a delivery of the property to the donee personally; but such a delivery may be effected and the gift rendered valid by a delivery to a third person in trust and for the benefit of the donee. Sorrells v. Collins, 110 Ga. 518, 36 S.E. 74 (1900). Gift in writing not testamentary in character. - Expression in writing transferring title to the trustee of the donee, which made the gift conditional on the donor’s death, and which is but an expressed statement of this essential element of a gift causa mortis as distinguished from a gift inter vivos, did not render the writing testamentary in character. Whether express or not, such a condition is always implied under the very definition of a gift causa mortis, as generally recognized and as expressed in this statute. Cannon v. Williams, 194 Ga. 808, 22 S.E.2d 838 (1942) (see O.C.G.A. § 44-5-100). Delivery of a certificate of deposit constituted a valid gift causa mortis. Philpot v. Temple Banking Co., 3 Ga. App. 742, 60 S.E. 480 (1908). Purported transfer of certificates of deposit not valid gift causa mortis. - Trial court did not err by holding that the purported transfer of certificates of deposit did not constitute a valid gift causa mortis since the only evidence submitted by defendants that the decedent intended to transfer the certificates to the defendant were the signature cards and the defendant’s testimony. NeSmith v. Ellerbee, 203 Ga. App. 65, 416 S.E.2d 364 (1992). Check as gift causa mortis. - Check payable to the donor or bearer is capable of

being made a gift inter vivos or causa mortis, and that in such gifts a mere delivery of the check, accompanied by proper words of gift, is sufficient; and it is not necessary, in order that the gift may be complete, that the check shall be presented for payment before the death of the donor. Philpot v. Temple Banking Co., 3 Ga. App. 742, 60 S.E. 480 (1908). Life insurance policy. - General rule is that a policy of insurance on the life of a donor may be made the subject of a gift in the same manner as any other chose in action. Higgs v. Willis, 205 Ga. 857, 55 S.E.2d 372 (1949). Realty cannot be the subject of a gift causa mortis. Salmon v. McCrary, 71 Ga. App. 262, 30 S.E.2d 444 (1944). Conveyance not a gift causa mortis. - Conveyance was not a gift causa mortis under O.C.G.A. § 44-5-100(a) when a promissory note executed by grantees in favor of a

decedent indicated that the debt was to be forgiven upon the decedent’s death. The consideration was bargained for and paid to the decedent until the decedent’s death; neither a security deed nor the note made any mention of a gift; and the grantees would have been obligated to continue paying on the note had the decedent not died. Mize v. Woodall, 291 Ga. App. 349, 662 S.E.2d 178 (2008). Cited in Poullain v. Poullain, 79 Ga. 11, 4 S.E. 81 (1887); Cowdrey v. Barksdale, 16 Ga. App. 387, 85 S.E. 617 (1915); Bank of Adel v. Hutchinson, 18 Ga. App. 418, 89 S.E. 492 (1916); Moore v. Tiller, 61 F.2d 478 (5th Cir. 1932); Drake v. Wayne, 52 Ga. App. 654, 184 S.E. 339 (1936); Thomas v. Lockwood, 198 Ga. 437, 31 S.E.2d 791 (1944); Swann v. Morris, 212 Ga. 460, 93 S.E.2d 673 (1956); Abney v. West, 101 Ga. App. 450, 114 S.E.2d 149 (1960).

RESEARCH REFERENCES Am. Jur. 2d. - 38 Am. Jur. 2d, Gifts, §§ 5, 9, 12, 39. C.J.S. - 38 C.J.S., Gifts, §§ 45, 47. ALR. - Gift of debt of third person not evidenced by commercial instrument, 14 ALR 707. When transfer deemed to be one in contemplation of death, within the meaning of the inheritance tax laws, 21 ALR 1335; 41 ALR 989; 75 ALR 544; 120 ALR 170; 148 ALR 1051. Delivery of bill or note of third person by way of gift, 25 ALR 642. Validity of gift causa mortis as affected by donor’s intention to transfer all his property, 90 ALR 366. Necessity of delivery where subject of gift is already in possession of donee at time of declaration of gift, 103 ALR 1110. What institutions or gifts are within statutes declaring invalid bequests for charitable, benevolent, religious, or similar purposes, if made within a specified period before testator’s death, or prohibiting, or limiting the amount of, such bequests, 111 ALR 525.

May proof of delivery essential to gift rest upon subsequent declarations of donor, 124 ALR 1391. Delivery of key to safe-deposit box or other receptacle as sufficient to consummate gift of contents, 127 ALR 780. Time as of which rate of tax applicable to transfer in contemplation of death, or to take effect on death, is determined, 5 ALR2d 1065. Transfer by inter vivos trust of insurance policies upon settlor’s life as in contemplation of death for tax purposes, 17 ALR2d 787. Nature and validity of gift made in contemplation of suicide, 60 ALR2d 575. Creation of joint savings account or savings certificate as gift to survivor, 43 ALR3d 971. Delivery of personalty to third person with directions to deliver to donee after donor’s death as valid gift, 57 ALR3d 1083. Unexplained gratuitous transfer of property from one relative to another as raising presumption of gift, 94 ALR3d 608.

ARTICLE 5 THE GEORGIA TRANSFERS TO MINORS ACT Editor’s notes. - Section 10 of Ga. L. 1972, p. 193, effective July 1, 1972, provided that it was the purpose of the Act to reduce the age of legal majority from 21 years of age to 18 years of age so that all persons, upon reaching the age of 18, would have the rights, privileges, powers, duties, responsibilities, and liabilities previously applicable to persons 21 years of age or over. The section further provided that the Act was not to be construed as having the effect of changing the definition of a minor or of an adult as defined in the former ‘‘The Georgia Gift to Minors Act’’ for the purposes of that Act. Ga. L. 1990, p. 667, § 1, effective July 1,

1990, repealed the Code sections formerly codified at this article and enacted the current article. The former article, concerning the Georgia Gift to Minors Act, consisted of §§ 44-5-110 through 44-5-124 and was based on Ga. L. 1955, p. 592, §§ 1-13; Ga. L. 1957, p. 98, § 1; Ga. L. 1960, p. 232, § 1; Ga. L. 1969, p. 24, §§ 1-8; Ga. L. 1981, Ex. Sess., p. 8; Ga. L. 1983, p. 3, § 33, Ga. L. 1984, p. 22, § 44, and Ga. L. 1985, p. 819, §§ 1-3. Law reviews. - For article surveying trust and estate law in 1984-1985, see 37 Mercer L. Rev. 443 (1985). For article discussing the custodian as a fiduciary under this article, see 7 Ga. St. B.J. 175 (1970).

RESEARCH REFERENCES ALR. - Gift of savings deposit by delivery of passbook, 40 ALR 1249; 84 ALR 558. Right of parent as against creditor or lienor to make gift to minor child of latter’s own services, 44 ALR 876.

‘‘Business situs’’ for purposes of property taxation of intangibles in state other than domicile of owner, 143 ALR 361. Construction and effect of Uniform Gifts to Minors Act, 50 ALR3d 528.