February 11, 2022 • By Dennis Beaver
When 70 year-old Scott met 50 year-old Dora, “It was love at first sight, combined with a large dose of humor,” she said. “We were on different teams at a bowling alley, and I still remember the look on his face when he first saw me – and then how he threw a gutter ball and everyone laughed.”
That was 11 years ago. They both needed laughter, love and companionship, as each had lost a spouse due to cancer. “Despite our age difference, we decided to move in together and until the past two weeks, it has been wonderful.”
‘I Promise to Provide For You if We Ever Separate’
“We lived in my home, shared all expenses and as Scott had health issues, he asked and I agreed, to quit my job as an accountant to care for him. All our bank accounts and financial items were separate. There was no “Living Together” contract, and we never had any issues over money.
“We acted as if we were married, each of us very generous to the other and Scott promised to provide for me if we ever separated. He even told our friends that. Life together in my house was a little bit of paradise for those years together,” Dora told me over Skype, sobbing.
But fall from paradise they would, as one day Scott announced, “I’m not getting any younger and want to spend my remaining years in Texas, with my kids, but the safe and its contents are yours.”
Scott had been purchasing gold and silver for many years with a present value of about $200,000 stored in his safe.
Memory Issues – Dementia Ruled Out
Having experienced slight memory issues, Scott was evaluated and diagnosed with diabetes which was quickly controlled, ending the memory problems.
“After announcing his plans for Texas, he immediately arranged for a moving company to pick up the safe — empty and with the door left unlocked to discourage a possible burglary — and bring it to my home. The next day we put the gold and silver in the safe,” Dora related, adding:
“Then, he gave me the mover’s receipt, the safe’s combination, a goodbye kiss, and the next time I heard from him was last week on a phone call with his son, ‘Jon.’”
“We Want Dad’s Safe and Contents Returned!”
As Dora explained, “Jon told me they were planning to drive out and recover the safe and its contents, threatening, ‘Don’t give us any trouble or you will be sorry.’ Mr. Beaver, I need the monetary value of those precious metals to live. Must I give it all back?”
“Not so fast,” was the immediate reaction of a friend of this column, Plainfield, Massachusetts family law attorney Laurie Israel, author of The Generous Prenup – How to Support the Marriage and avoid the Pitfalls.
“While the couple had no formal ‘living together’ agreement – that is highly beneficial to older couples who don’t want to be married, usually for financial reasons – there is a great deal of evidence that the safe and contents were not only a gift, but compensation for Dora having cared for him these many years.”
“In the law school course Contracts, students analyze similar cases. Under several legal theories, the safe and contents now belong to Dora, based partially on her having given up a career to care for Scott. She relied on his promise to provide for her should their relationship end. It is clear that he gifted the items to her.”
What is a Gift?
Attorney Israel set out the legal elements that establish a gift, explaining the three types:
— An Inter Vivos Gift: This is a gift made during the life of the donor. These are irrevocable.
— A Gift Causa Mortis: A gift that is made in anticipation of imminent death. The transfer is usually effective upon the donor’s death, and can be revoked up until the donor dies.
— A Testamentary Gift: This is a gift distributed through a will.
Proof that a Gift was In Fact Made
The elements to prove that a gift was made include:
— Donor’s Legal Capacity: The donor must be of the majority age (usually 18 years old), and have the mental capacity and understanding that they are making a gift.
— Intent to transfer the property as a gift: This can be shown through statements, writings, or conduct. Intent also means that the donor doesn’t expect compensation.
— Delivery to the Donee: Delivery of the gift can be actual, symbolic, or implied through conduct. Physical delivery to Dora’s home plus Scott writing down the combination to the safe would lock that element in.
— Acceptance by the Donee: The donee must also accept the gift, without any coercion or undue influence.
Our Advice to Dora
Both Laurie and I agree that she should immediately rent safe deposit boxes large enough to accommodate the gold and silver. She should make a police report of the threats and retain an attorney to prepare a Stay Away order. It would be a tragedy for her to have devoted all those years to Scott only for his kids to defeat his generosity.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.