Lesson # 209 (Gifts - part eleven) • Words Indicating a Gift In Lesson 204 it is stated that the gift causa mortis begins with a declaration of the donor. That is, the donor, who is critically ill, must use words that indicate that he is making a gift causa mortis. Sometimes the words are ambiguous; sometimes they are words that show an intent to give an inheritance rather than a gift causa mortis. If the former, there are certain rules that apply, and if the latter, there are other rules. Beginning with this lesson we deal with the language of the gift. Beth Din must analyze the language of the critically ill donor to ascertain if he meant a gift causa mortis, was only expressing a preference without a real desire to make a gift, or was expressing a wish to give an inheritance. The requirement for the donor to have the requisite intent to make a gift is also discussed. What if the donor makes a declaration that he wants a gift to be given to someone who will, in all events, receive money from the estate of the donor even if he was not given the gift? For example, his firstborn son (as well as his other sons) will inherit his net assets, his wife will be paid her kethuba and his creditor will be paid the debt without the gift. Is the gift in addition to their inheritance or kethuba or in lieu of them? The Talmud (Baba Batra 138b) started out with a few simple rules, but over the centuries, the new fact situations enlarged the scope of the rules. The donor makes gifts causa mortis to several persons and has assets that are insufficient to pay all of the gifts. Are there priorities in the donees? What if he leaves debts totaling less than the gifts? Which of the donees must pay the debts from their gifts? What if the gift causa mortis is to be given from certain assets and those assets are lost before the gift is actually transferred, whether of cash or of a specific item? This question does not arise in the case of gifts of a healthy person, since there, the gifts are acquired by the performance of an act of acquisition. But in the case of the gift causa mortis, the gift will not be given to the donee until after the death of the donor if there was no formal act of acquisition; the assets from which the gift is to be given could be lost, stolen, or destroyed in the interval. There are situations that arise, in the case of a donor who is critically ill, regarding the gift that he gives. Perhaps because of his condition of facing imminent death, because he is trying too hard to do the right thing, because he is normally inarticulate or inaccurate, or for any other reason, the gift may not be too accurately or definitively defined. What should Beth Din do to give effect to the intended gift? Will it divide a house to give effect to the words of the donor? Will it divide personal property? The Rabbis instituted the gift causa mortis to permit a critically ill person to know that his wishes would be followed. They thus dispensed with the formalities of requiring an act of acquisition to be performed to transfer ownership of the assets of the donor upon his death. Does the concept of gifts causa mortis extend to situations where a healthy person could not make a valid gift? There are times when the donor declares a gift causa mortis in favor of a person, a class of people, or an institution without being specific. Or he may acknowledge a debt to a person named Shimon without further identifying him. What if the person who is critically ill declares that he does not want any eulogy to be recited at his funeral, nor to have any money spent to bury him? What should Beth Din do in such situations? In many of the past lessons reference is made to gifts causa mortis. Sometimes they will technically not be valid gifts causa mortis since they may not comply in all respects for such gifts (mainly in cases where the gifts do not comprise all of the assets of the donor). They will, however, comply with gifts made in apprehension of imminent death. Whenever the term "gifts causa mortis" is used, it will be intended to also refer to either a gift causa mortis or to a gift made in apprehension of imminent death. What are words indicating a gift causa mortis? Assume that all of the laws required to make a valid gift causa mortis are present, and we are now concerned only with the wording of the gift. The halacha recognizes that a person who is critically ill will not be as articulate as one who is making a gift as a healthy person, who has time to think about his words and who may also consult with others, including attorneys. Also, in situations of gifts of healthy persons an act of acquisition must accompany the gift to make it binding, something that is not required in the case of a gift causa mortis. Therefore, the Beth Din, in examining the situation, should liberally construe the words of the deceased donor to see if it was his intent to make a gift; Beth Din must also bear in mind the rights of the heirs, who will be adversely affected by the gifts. A few examples, cited by the Talmud (Baba Batra 148b-149a) and continued in the codes, follow: A critically ill person declares: So and so shall "receive all of my assets", "receive the following of my assets", "take possession of the following [or all] of my assets", "acquire ownership of the following [or all] of my assets", or "own the following [or all] of my assets", or "have my assets". Each phrase effects a valid gift causa mortis. The phrases: Let so and so "benefit from my assets", "stand in them", "be seen in them", or "recline in them" are not indicative of a gift. Each Beth Din must determine the language of the gift according to its own community standards and customs. The declaration need not be a statement made by the critically ill donor. It may be a response to a question asked by the witnesses present. For example, the witnesses ask the donor, "Do you want your son to receive one half of your estate?" and the donor answers, "Yes, I do". The donor may even answer with a question, as, for example,
if the witnesses ask the critically ill person, "Do you want your assets to
be given to your best friend, Reuven?" and the donor answers "To whom else?"
In this latter situation, it is important as to how the question is phrased
to the donor. If he is asked, "Should Reuven inherit from you?" and he
answers, "Yes", or, "If not Reuven who?" and if Reuven is not a natural
heir, Reuven will not receive anything since the language is not that of a
gift causa mortis. he 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
Vayeira Homepage]
|
