24400 To: Professor Melniker From: 24400 Re: New Client, Lindzee Love Date: 22 November 2013 Questions

Presented I. Under N.Y. Civil Rights Law 80-b (McKinney 2013), which requires that gifts made in contemplation of marriage be returned when an engagement is nullified, was the diamond belt given by Marco Mann to Lindzee Love in contemplation of marriage?

II.

Was the diamond belt an inter vivos gift when Mann was known to give expensive gifts, the belt was passed down as part of a family tradition, he physically placed it on Loves body, and Mann and Love shared access to the locker in which the belt was stored? Brief Answers

I. II.

Yes, the gift was made in contemplation of marriage. No, the gift was not an inter vivos gift because intent was not met. Statement of Facts Our client, Lindzee Love is a prominent young socialite that dabbles in acting. For the

last few months, she was in love with Marco Mann. She claims that she was engaged to him. One night on the way to a party, Mann gave her a diamond belt. She wore this belt that night and on a few other occasions. Love and Mann have since broken up. Mr. Mann wants his belt
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24400 back. Miss Love insists on keeping it. She wants to declare the item as an inter vivos gift so that she can maintain custody of the diamond belt. This memorandum will analyse will analyse whether Love will be able to classify her belt as an inter vivos gift, thereby relieving her of the obligation to return it to Mann. Applicable Statute Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof (McKinney 2013). Discussion The first issue is whether the diamond belt is a gift made in contemplation of marriage. Gifts made in contemplation of a marriage that does not occur must be returned to the person who made the gift. N.Y. Civ. Rights Law 80-b (McKinney 2013). No exceptions are provided (McKinney 2013). Because Manns gift to Love was made in contemplation of marriage, the court will find that the diamond belt was an 80-b gift, and that Lindzee Love will have to return it to its original owner. Next, the court must decide whether the belt was an inter vivos gift. There are three elements of a gift inter vivos. Gruen v. Gruen, 68 N.Y.2d 48, 53, 496 N.E.2d 869, 872, 505 N.Y.S. 2d 849, 852 (1986). All three must be met for this status to be conferred. Id at 53.
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24400 First, the donor must intend to make a gift. Id. Mann and Love had access to the safe in which the diamond belt was kept. Thus, it does not meet this requirement. Second, delivery must be made by the donor to the donee. Id. The diamond belt was physically placed around Miss Loves waist by Mr. Mann. Consequently, the delivery aspect was satisfied. Finally, acceptance must take place. Id. Acceptance is presumed when the gift is of value to the donee. Id. at 57. The diamond belt at issue is clearly of value to the donee, as she wants to keep the belt. Thus, it can be safely assumed that the condition of acceptance has been met. However, because of the failure to meet the intent aspect, the court will find that this is not an inter vivos gift. Section 80-b of the New York Civil Rights Law requires that gifts made in contemplation of marriage must be returned to the donor in the event that the marriage does not occur (McKinney 2013). To see if contemplation of marriage has occurred, the court looks at the sole consideration or motive behind the gift. Gaden v. Gaden, 29 N.Y.2d 80, 86, 272 N.E.2d 471, 474, 323 N.Y.S.2d 955, 960 (1971). If the only reason in giving the gift was towards marriage, then the statute applies. Id. at 80. However, if there is some ulterior motive in offering the present or the donor is already married to someone else, then the statute does not apply. Lowe v. Quinn, 27 N.Y.2d 397, 267 N.E.2d 251, 318 N.Y.S.2d 467 (1971). Questions concerning fault are irrelevant in determining recovery. Gaden, 29 N.Y.2d 87. When the statute is applicable, the gift must be given back by the donor to the donee. Id. In Gaden v. Gaden, a couple divorced but started living together under the expectation that they were going to get married again. Id. The ex-husband bought land and transferred it to his ex-wife. Id. The court held that section 80-b was applicable even when the property was transferred to the plaintiff by a third party. Id. at 86. All that mattered was that engagement was dead, and that the gifts had to be returned. Id.
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24400 Conversely, when the gift is not made in contemplation of marriage or the marriage has already taken place in fulfilment of contemplation, the statute can be rendered inapplicable. Lowe, 27 N.Y.2d 397. In Lowe v. Quinn, a married man gave an engagement ring to a woman other than his wife. Id. When the fiance broke off the engagement, he sought the return of this ring. Id. The court did not allow him to recover the ring because he was already married and this violated public policy. Id. at 400. Arguably, 80-b does not apply to the diamond belt. Manns gift to Love is analogous to the man in Lowe who gave the engagement ring to his girlfriend. Though Mann has never been married, he has been engaged twice before. Furthermore, just as Mr. Lowes actions were based on fraud and deceit, some of Manns own statements allude to insincerity on his part. Id. at 401. According to The New York Gazette in an issue from July 2013, when Marco Mann was asked if he had set a date for the wedding, Theres no rush because were so happy just the way we are. After all, I first have to buy the engagement ring. This openended attitude casts some doubt on whether the diamond belt was truly made in contemplation of marriage. Mann also admitted in an issue of We from the following October, She knows I just gave it to her for the night. If the diamond belt was given just for one night, how could it possibly be given in sole consideration of marriage? In fact, however, gifts made in contemplation of marriage are by no means limited to engagement rings. Gaden, 29 N.Y.2d 87. When Mann gave the belt to Love, he said, We are getting married, arent we? Moreover, there is no need for a wedding date to be set for the gift to be made in contemplation of marriage. Just as the man in Gaden who transferred land to his wife, Mann gave the diamond belt to Love under the presumption that he was going to get married to her. Unlike the husband in Lowe, Marco Mann had not violated public policy. Additionally, Mr. Mann did not literally mean that the belt was only given to her for

24400 one night. If the belt was given only for one night, then Love would not have been able to wear it on even one more occasion, let alone six to seven times. After considering the relevance of 80-b to this situation, the court will decide whether or not the belt was an inter vivos gift. The first element of an inter vivos gift is intent. Gruen, 68 N.Y.2d at 54. The donor is required to intend an irrevocable present transfer of ownership. Id. This means that when the donor gives his or her gift to the donee with the expectation that the donor will never get it back. Furthermore, this transfer must be intended to take place immediately. Id. at 56. Thus, the gift makers state of mind must be that he or she is giving up his or her right to the property and that this occurring immediately at the time of the handover to the recipient. In Bader v. Digney, the court held that a woman who passed away intended to make an inter vivos gift to her son. Bader v. Digney, 55 A.D.3d 1290, 864 N.Y.S.2d 606 (4th Dept, 2006). In that case, the decedent did not want to record a deed until things settle[d] down because she feared that her daughters would cause trouble if they were to find out that the property was given to the son and not them. Id. at 1292. The son was also able to establish that he, his mother, and mothers attorney were all present when the mother executed the deed. Id. Furthermore, the son was there to accept the deed, which was handed to him at the decedents direction. Id. However, the court in Mortellaro v. Mortellaro ruled that there was no intent. Mortellaro v. Mortellaro, 91 A.D.2d 862, 458 N.Y.S. 390 (4th Dept, 1982). In this case, a woman took $20,000 from a joint-savings account that she shared with her husband and put it into a six-year term account in her own name. Id. The couple eventually divorced, and the husband wanted his money back. Id. Because the husband was not prone to making large gifts, there was nothing in his behaviour to suggest that he had exhibited the requisite

24400 donative intent necessary to make an inter vivos gift. Id. at 863. It was also acknowledged he did not add his name to the term account because he thought he would have incurred a penalty from the bank. Id. Arguably, intent for an irrevocable present transfer was made by Marco Mann to Lindzee Love. Analogous to the mother in Bader, the donor was present before the donee at the time of the transfer. Unlike the husband in Mortellaro, Mann is prone to making large gifts. He was engaged twice before, and the belt was probably given to and returned by his previous fiances. Likewise, when he said, I want you to have this, he was actualising an intention to irrevocably and immediately transfer ownership from himself to Miss Love. In spite of this, the case is actually quite different from Bader. The mother in Bader was worried about the jealousy of her other children causing trouble, which is why she did not record the deed. Mann had no such fears of competing claims to his diamond belt. It was however, an item that was meant to be passed within the Mann family. Manns goal of maintaining this tradition plays a great part in establishing his state of mind at the time he gave the belt to Love. Additionally, analogous to the wife in Mortellaro who was given access to the passbook, Miss Love shared the safe with Marco Mann. Moreover, at the same time that Mr. Mann gave the gift, he also said, Everything I have is yours. This indicates that his intent is contrary to the irrevocable scope that an inter vivos gift calls for. So long as Mann and Love were together, Love could have the belt and partake in all of Manns other possessions. When Mann and Loves relationship came to an end, however, she was no longer allowed to share her partners belongings. The second element of inter vivos gift is delivery. It can be achieved by an actual or constructive delivery of the gift must be made from the donor to the donee. Gruen, 68 N.Y.2d 53. The delivery must be sufficient to divest the donor of dominion and control over the property. Id. at 56. While the delivery requirement is flexible, it is meant to be applied
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24400 according to these guidelines so that the court can determine what is sufficient to constitute delivery in each specific case. Id. One of the main purposes of this requirement is to prevent fraudulent claims of inter vivos gifts from taking place. Id. In Gruen v. Gruen, the court ruled that delivery was met. Id. at 48. In this case, a son sought a declaration affirming that he was the rightful owner of his now deceased fathers painting that was in his stepmothers possession. Id. It was impossible to establish actual delivery from the decedent to his son. Id. However, the court interpreted that constructive delivery had taken place because there were some letter from the father to his son that referred to the gift. Id. These letters served as an instrument of gift. Id. Therefore, the court acknowledged that symbolic delivery was sufficient to meet the delivery element of gift inter vivos. However, the ruling for In re Lafflers Estate stated that delivery was not satisfied. In re Lafflers Estate, 1 A.D.2d 84, 147 N.Y.S.2d 211 (4th Dept 1955). In this case, a woman administrating her deceased husbands account alleged that proceeds from a certain stock were given to her by the decedent as a gift. Id. at 84. In this case, there was no physical delivery of the certificates after the decedent. Id. at 86. Additionally, there was no evidence to suggest that the decedent told his wife that the certificates were hers. Id. Because the decedent neither vested his wife with complete ownership over the certificates, no relinquished control of them, it could not be established that delivery was met. Id. This case is similar to Gruen. Analogous to the fathers correspondence with his friends and associates in Gruen, Marco Mann made several contemporaneous statements to the media affirming that he gave the belt to Lindzee Love while he was still engaged. These announcements can symbolically be viewed as instruments of delivery. Furthermore, Mann physically placed the diamond belt around Loves waist when he gave the belt to her. This

24400 constitutes a physical delivery of the gift from the donor to the donee. Manns inability to get the belt at the time of the breakup suggests that he lost a significant amount of control over the object. Arguably, delivery did not take place. Analogous to the husband from In re Lafflers Estate, Mann did not vest complete ownership in Love. As a matter of fact, both Mann and Love had equal access to the safe that the belt was housed in. The ability for the two of them to come into contact with the gift suggests that Mr. Mann did not entirely divest the donor of dominion over the belt to Love. Nevertheless, this view fails to acknowledge the reality of the situation. Unlike facts surrounding In re Laffler, there was a physical transfer of the belt from Mann to Love. Furthermore, unlike the womans testimony in that case, Lindzee Loves statements can be corroborated by articles in The New York Gazette and other such periodicals. The court will thus rule that delivery was met. Conclusion Lindzee Love cannot keep the belt that she was given by her ex-fiance, Marco Mann. There are two issues to her claim. The first is the belts applicability to N.Y. Civil Rights Law 80-b. The second is whether or not the belt is an inter vivos belt. With regards to the first issue, it has to be shown that the gift was not made in contemplation of marriage for Love to keep the belt. Because acceptance is assumed, the inter vivos gifts issue is divided into two components. The first is intent and the second is delivery. To determine whether the belt is a gift inter vivos, both elements need to be satisfied. In the first issue, Miss Loves gift was given in contemplation of marriage. When Mann gave Love the gift, he explicitly mentioned his intention to marry her. While he was

24400 ultimately unfaithful to her, his sole consideration at the time he gave the gift was marriage. In the second issue, only one of the two elements necessary to establish inter vivos gift delivery has been met. The intention requirement was not met because he did not aim to make an unconditional, irrevocable transfer. His intention was a conditional and revocable because he was under the understanding that the two of them would be in a relationship with one another forever. If Marco Mann intended an irrevocable transfer, he would not have the two of them share the safe. Delivery, however, was met because he physically placed the belt on Lindzee Loves body. As intent is also needed, delivery in its own right cannot simply suffice for there to be an inter vivos gift. Unfortunately, Miss Love will no longer be able to maintain ownership over the diamond belt.