Lesson # 206 (Gifts - part eight) The first question that comes to mind regarding gifts causa mortis, is, who may make a gift causa mortis? Maimonides (Laws of Original Acquisition & Gifts 8:1-2) describes who is to be considered a critically ill person who may make a valid gift causa mortis, and who is not considered critically ill and thus may not makea valid gift causa mortis. A person who is blind or lame or whose hands or fingers are cut off, or who has aches in his head or in his eyes or in his hands or feet or similar things is considered to be legally a healthy person insofar as gifts, sales, and purchases are concerned. But if a person is ill and his entire bodyhas become weak and whose body strength has waned because he is sick so that he cannot walk outside in the marketplace but is confined to bed, he is considered critically ill. As described in these lessons, the laws governing the gifts of such a person differ from the laws of one who is healthy. If the critically ill person who makes a gift causa mortis gets somewhat better but still does not leave his house, or only partially recovers from this illness and dies of another illness, the giftsare still treated as gifts causa mortis from the original illness. Even if he can walk in his house using a cane, he has not recovered sufficiently to have the gift automatically rescinded because of recovery. If he is able to leave his home and then becomes ill again and dies, it is for doctors to determine if he diedof the original illness. If they decide that he died of that original illness, the gift that he made is a valid gift causa mortis of that original illness. If the doctors decide that he recovered from the original illness and died from a new illness, the gift automatically fails and the assets are distributed to his heirsas if the gift had not been made. The person making the gift causa mortis must be lucid. There is no requirement that the critically ill person must state that he is lucid; those who are present when he makes the declaration of the gift can testify that he was lucid. If a memorandum of the gift was written and signed by witnesses, then it is presumed thatthe witnesses would not have signed the memorandum if the donor was not lucid when he made the gift. The best practice is for the witnesses to state in the memorandum that the donor was lucid when he made the gift. Even if the donor is what is called a goseis (in dying condition), (if he can speak or write), he can make a gift causa mortis. If the goseis cannot speak or write his intentions, he cannot make a gift causa mortis, even if he can move his hands or make other motions to indicate his intent. This is not equivalent to a deaf-mute,who can certainly make a gift if he can make his intentions known and seems to understand what he is doing. The critically ill person must himself make the gift causa mortis. If he appoints a guardian (whether orally or in writing) to make such gifts with his assets as the guardian sees fit after the donor dies, the gift is not effective. Even if he appoints a Beth Din as the guardian to make the gift; the result is the same:the gift is not effective. It is not effective because there is nothing left for the guardian to distribute. Upon the death of the decedent, the natural heirs became the owners of all of the decedent's assets. The mere declaration of the critically ill person in the presence of witnesses makes the gift causa mortis effective. The gift can be made by any of the following four methods of declaration: (1) the oral causa mortis declaration of the donor (this is the most usual method); (2) the written causa mortis declaration of thedonor, which writing is given to the witnesses; (3) the oral declaration made to others to write his instructions of disposing of his assets; or (4) the persons who were present when the donor made his oral declaration under (1), without any request by the donor to write his instructions, nevertheless reduce his instructions to writing. The writings under (2) and (3) are not deeds of gift but instructions of the donor; the writing under (4), which may or may not be signed by the witnesses, is a memorandum of the donor's instructions, and not a deed of gift. If any of the donees request the witnesses who have written a memorandum under (4)which includes all of the gifts of the donor, to write another memorandum to show only that portion of the gift that they are to receive, the witnesses may write such a separate memorandum. The reason is that the memorandum is not an instrument that gives effect to the gift, but rather is only evidence of the gift. There is no danger that they will be able to collect gifts twice from the heirs, once with the general memorandum and once with the specific memorandum, since the heirs will demand a receipt when they give the gift the first time. The declaration to make a gift causa mortis must be made in the presence of witnesses. There is a difference if there is only one witness present, if there are two witnesses present, and if there are at least three witnesses present when the declaration is made. If there is only one witness present to the declaration, no matter how trustworthy and learned he may be, then a declaration of the critically ill person made in his presence only is a nullity since it is on the testimony of only one witness that a distribution of assets will be made that may adversely affect the natural heirs of the donor. There is a general principle in halacha that in order to prove monetary matters, two witnesses are required, especially when the testimony will adversely affect the natural heirs. If there is no possibility for another witness to be called, then the witness should, if possible, have the critically ill person sign a memorandum of his gifts. However, if the heirs know that the sole witness is telling the truth, they should acknowledge this and distribute the gift causa mortis as if the declaration had been made in the presence of two witnesses. If there were two witnesses present, they may testify in Beth Din as to methods (1) and (2) of the declaration described above. Under (3) they are instructed to write the memorandum of the gift, and under method (4), they may write the declaration of the donor. Since two persons cannot constitute a Beth Din, these two witnesses cannot constitute a Beth Din to interpret the words of the donor or to oversee the distribution of the gifts. But they may testify in Beth Din as to the entire trans- action. If there are three witnesses present, they may fulfill either one of two roles. They may be witnesses who will appear in a Beth Din to testify as to the facts. However, since any three men can constitute a Beth Din, these three witnesses may fulfill the function of a Beth Din and interpret the words of the donor and even make distribution of the gifts after the death of the donor. The subject matter of this lesson is more fully presented in
Volume VII Chapters 250 of "A Restatement of Rabbinic Civil Law" by E. Quint,
published by Jason Aronson, Inc. and on sale at local Judaica bookstores. [The Parshat
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