Can I take back a monetary gift I gave to my mother after my father’s passing?
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Can I take back a monetary gift I gave to my mother after my father’s passing?
My father left his entire estate to me with the exception of a building which he and his brother held the mortgage. Upon his passing he bequeathed his share to my cousin who declined. According to the will it was then to go to me, however I felt bad for my mother and said she could have the monthly mortgage payments. Unfortunately I am in need of those funds and would like to receive those payments now. I have legal proof that I am the sole heir. How do I go about having her turn these payments over to me?
Asked on October 27, 2016 under Estate Planning, Connecticut
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 7 years ago | Contributor
Once you give someone something--whether a physical object, or rights to a revenue stream, or interest in a property--it belongs to them, and you have no further rights in or to it. A gift, once given, cannot be ungiven: you cannot get back from her anything you gave her (no matter how much you may need the funds) except and only if when you gave her the right to the payments, you specifically--at that time--reserved a right to take them back. If there was a reservation of right, then you did not unconditionally give her the payments; but if you unconditionally gave them, they are hers.
Of course, unless you reserved the right in writing, even if you now claim you orally reserved it, it will be almost impossible to prove: 1) because you'd be suing her to get the rights back, you have the "burden of proof," which means that if she remembers things differently and its just your word vs. hers, unless you are considerably more believable than her, she'll win--you will have failed to carry your burdent of proof; and 2) the presumption is that a gift is unconditional or irrevocable, so you would be having to overturn that normal assumption.
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