Lesson # 207 (Gifts - part nine) • Gifts Made in Contemplation of Death We continue on how a gift causa mortis is made by the donor.
The gift cannot be deemed to be truly effective during the lifetime of the donor at the time that he made the gift, for if it were, it could not be automatically rescinded by the recovery of the donor, nor would the donor be able to rescind the gift while he is yet alive. The declaration of gift may provide that it takes effect when the donor dies since it is ''as if" the gift had been made during the lifetime of the donor (when the declaration was made). The critically ill person declares by one of the four methods stated in last week's lesson, that he makes gifts of all of his assets because he is critically ill, that he makes gifts of all, or even part, of his assets under apprehension of imminent death, or such other words to indicate that he is making these gifts because he believes that death is imminent. There are times when, if he makes a gift of all of his assets, even if he did not specifically state that he made the gift because he is critically ill, Beth Din may still ascertain, depending on the facts of the case, that it was his intent to make a gift causa mortis. There is an opinion that within the first three days of his illness, the donor must state that it is a gift in apprehension of imminent death if it is of less than all of his assets. After three days of this critical illness, or even within the first three days if he is obviously not going to survive, it is not necessary for him to mention that he makes the gift as a critically ill person. If the gift is of less than all of the assets of the donor, it cannot qualify as a gift causa mortis (unless it is accompanied bywords of the critically ill donor that he intends this specific gift as the gift of a person under apprehension of imminent death). Thus, it is a gift causa mortis if the gift is: (1) of all of his assets, even if he did not explicitly state that it is such a gift but the facts so indicate; (2) of part of his assets if he expressly states that he wants it to be a gift made in apprehension of imminent death or a gift causa mortis. If it is only a part of his assets, it is not a gift causa mortis unless this is expressly stated. The critically ill donor states, "I make a gift of all of my assets, parcel of real estate A and parcel B." Although it may indicate that he owns other parcels, since the donor used the words, "all of my assets," this will be deemed to be a gift of all of his assets and will qualify as a gift causa mortis. If the critically ill donor states that he gives the donee "a gift of my assets," without specifying all of his assets, then Beth Din has to ascertain the meaning of the words "of my assets." Does it mean "some of my assets" or "all of my assets"? Unless the donee can prove otherwise in beth din, it will be held to be a gift of only a part of the assets of the donor, and unless the donor specifically states that it is intended as a gift causa mortis, the gift will fail as a gift causa mortis and the natural heirs will inherit the donor's assets. The heirs can plead that perhaps the donor had other assets and thus the gift was not a gift causa mortis. This assumes that there was no kinyan performed. However, if a kinyan was performed, the gift of only part of the assets may qualify as a gift of a healthy person if it was so intended. In that event, the donor cannot rescind the gift, and it is not automatically rescinded if the donor recovers from his illness. There is an opinion that unless it is known that the donor had other assets, the term "of my assets" means "all of my assets" and will qualify as a valid gift causa mortis. Even if the gift is of less than all of the assets of the donor, it will still be treated as a gift causa mortis if the donor specifically states that he wants the gift to be so treated. Or if he uses other words that indicate such an intent. The gift will be treated as a gift causa mortis, and the donor has all of the rights of rescission that a donor has in cases of gifts causa mortis; if the donor dies, the donee keeps the gift. However, if the critically ill donor gave away less than all of his assets (that is, he retained any part of his assets for himself, whether real estate or personal property, and did not declare that he wanted the gift treated as a gift under apprehension of imminent death or a gift causa mortis), the gift is not a gift causa mortis. However, it may qualify as a valid gift of a healthy person if it complies with the requirements for making such a gift, such as a kinyan having been performed. There is no difference, regarding a gift causa mortis, as to how many donees there are. Thus, if the gifts of the critically ill donor are made one after the other within a moment of each other, and without pause between the gifts, they all qualify as gifts causa mortis. When the donor dies of this illness, all of the donees will acquire their gifts. If the donor recovers from the illness or if he rescinds all or any part of the gifts, all of the gifts fail. However, if there is a longer time interval between the
giving of any of the gifts, it will be deemed that there is, at the outset,
a gift of only part of the assets to the first donee and then a further gift
of part of the assets to the second one, and so on, and none of the gifts
except the last one will qualify a gifts causa mortis. If there were several
gifts all given together as the last gifts, then all these last gifts will
be deemed to be valid gifts causa mortis. [The Parshat
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