1. CAPUTO GRISWOLD & ASSOCIATES
ATTORNEYS AT LAW
One Portland Square
Suite 912
Portland, Maine 04101
March 18, 2013
Sherry Wilson
27 Sea Road
Falmouth, Maine 04105
SUBJECT: Whether George is considered a legal gift.
Dear Mrs. Wilson:
I have reviewed the transcript from our consultation, which was held on February 11,
2013. In addition, I identified and reviewed several decided court cases. The cases
identify a court’s reasoning in determining the consideration for a legal gift. The
following is a review of our conversation, along with a discussion of the court cases.
Based upon analyzing the former court cases, it is most likely that the court will rule in
your favor finding George to be a legal gift.
RECITATION OF FACTS
There existed an ongoing and close relationship between yourself and Ms. Alice Blair.
She was considered a good friend and more like a grandmother than your landlady. The
two of you would often have dinner together and do things for each other. She had helped
you out financially while you attended college. Helping each other was a normal part of
your relationship.
Approximately two years ago, during July 4th
weekend, you received a phone call from
Ms. Blair. She asked if you could take care of Claymore. She did not seek payment for
the dog. Per the conversation, she advised that she could not care for more than two dogs,
as she had fallen and hurt her leg. Further, she stated that placement with you would be
perfect. Shortly thereafter, you agreed to take Claymore. Once he was in your possession
you immediately changed his name to George.
During the period George resided with you, including long after Ms. Blair’s leg healed,
she would see George every day with your permission. She either visited George in your
apartment or brought him downstairs to hers, while you were at work. She would also
watch George when you would go away on frequent weekend trips. However, George
was in your possession and care most of the time. Further, it was your responsibility to
take George to the vet and to pay for those visits. However, if you helped her out by
taking her two dogs to the vet, she would then reciprocate by paying for George’s vet bill.
When such an event occurred she would advise that is was her treat.

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Eventually you told Ms. Blair that you were moving approximately an hour away. You
asked her if she would watch George during the move and renovations, lasting
approximately a month. During your absence, she had cut George’s hair to her liking and
took a picture of all three dogs. The heading of the picture was titled “My Terriers” and
included the names of the dogs. George’s name was printed as his given birth name,
Claymore.
Upon your return to retrieve George, Ms. Blair indicated that George belonged to her.
She stated she was very happy to have him back and would never let him go again. She
then produced the original ownership papers and handed you a copy as proof of
ownership. It is Ms. Blair’s final actions, which led to consulting this firm for possible
recovery of George.
BRIEF ANSWER
The court will likely find that Ms. Blair intended, at the time she delivered George to
you, to give up all ownership rights to George and that you accepted George as a gift.
The court will rule that George, for all purposes, is a legal gift.
DISCUSSION
The court will likely mandate that Ms. Blair is to return George to you. In order to
recover, we must show that George is a legal gift. According to Maine Law, a legal gift
will be validated upon proof that the person giving the gift: 1) had donative intent; and 2)
delivered with the intent to surrender all present and future interests over the property;
and 3) the recipient accepted it. It will not be an issue in your case to prove that Ms. Blair
had donative intent or that you accepted George. The issue will be in proving that Ms.
Blair had the intent to surrender all present and future interest in possessing George.
ANALYSIS
MS. Blair Intended for George to be a Gift.
The court will likely find Ms. Blair had donative intent. Donative intent can be
established if there exists a close relationship between two parties, so that the giving of
property becomes a normal expectation. Courts have found routine acts of giving can
constitute as a gift. This is regardless if a party maintains possession of ownership papers
or later has a change of heart. Once donative intent is established it cannot be undone.
Where a close relationship exists and each person in the relationship routinely gives to
the other, courts have found such giving to be a gift. This can be established where the
giving was of monetary value or otherwise and, where no reimbursement had been
sought. In Brackett, a close relationship existed between a brother and a sister. The
relationship could be established since both visited each other every weekend. The

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brother routinely paid all taxes due on a property, for eleven years without seeking to be
reimbursed. The court reasoned that the brother’s conduct showed he had donative intent.
Even where one maintains possession of ownership papers, donative intent can still be
found. In Bradford, an established relationship existed between two parties. The
boyfriend held title to the truck in dispute. However, the truck was registered and insured
under the girlfriend’s name and she primarily used it. The court reasoned that possession
of ownership papers was immaterial, where conduct is proven that the giving of property
is intended as a gift. In this case, the truck was intended as a birthday gift. Therefore, the
court ruled donative intent was established.
Where donative intent existed at the time of the property change, it cannot be reversed
upon changing one’s mind. In Brackett, the brother did not pursue reimbursement of the
tax payments until his sister found out about joint ownership in the property. Similarly, in
Bradford the boyfriend didn’t pursue the truck until his relationship with the girlfriend
ended. The court held that a change of heart would not reverse donative intent.
The court reviewing our case will most likely find that Ms. Blair had donative intent. As
in the Brackett case, the establishment of a close relationship will be found. You had
routine dinner visits and would help each other out, financially or otherwise. In fact, Ms.
Blair provided for you financially while you attended college. Furthermore, she did not
seek to be reimbursed for her help. Where such a relationship is established, it can be
shown that gifts are a normal expectation. Therefore, Ms. Blair’s actions of giving you
George without seeking payment, along with her previous donative actions, will establish
she had donative intent.
The court will also examine the facts surrounding the original ownership papers for
Claymore, aka George. Similar to Bradford, where the donor maintained possession of
ownership papers, in our case Ms. Blair held on to the ownership papers. If conduct can
be shown to establish donative intent, the court will find the ownership papers to be
immaterial. Ms. Blair’s intent will exist in establishing the close relationship and the
exchange of previous financial or other gifts. She did not seek to be reimbursed for her
previous actions or for George. Further, her actions showed that she treated George as if
he belonged to you. Therefore, the courts will find Ms. Blair’s holding of ownership
papers immaterial since she had donative intent.
Once a gift is established it cannot be reversed due to a change of heart. Similar to
Brackett, where the brother sought reimbursement for previously paid taxes, in our case
Ms. Blair sought to regain George. In Brackett, the brother sought reimbursement once
his sister found out about joint ownership in the property. In our case, Ms. Blair did not
seek to regain George until after she found out that you were moving over an hour away.
In such a case, the court will find that once a gift has been given with the established
donative intent, it cannot be taken back simply because one had a change of heart.
Therefore, the court will find Ms. Blair cannot change her mind once she has made a
donative gift.

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Ms. Blair Intended to Surrender Immediate Possession and all Interests to George.
The court will find that Ms. Blair had intent to part with all present and future interest
when she delivered George to you. Delivery must be shown by clear and convincing
evidence. This can be established by showing intent existed at the time of delivery.
Additionally, there must be intent to release all present and future interest in the property
being given. Further, it must be intended for another’s possession to take immediate
effect.
Delivery must show intent to part with all present and future interest in the property. In
Westleigh, a niece was asked to accept a transfer of money from her uncle. The money
was being used to care for the uncle’s needs and expenses. The uncle did advise her that
she could use it to pay for her parent’s medical expenses. However, the niece believed the
funds were for his expenses. Further, she testified that she would have returned the funds
if asked to do so. The court found the uncle did not intend to part with all present and
future interest.
Likewise in Hill, the father requested for a third party to hold hospital stocks on behalf of
his son. However, he continued to actively participate in hospital decisions and the sale of
the hospital. The court reasoned in both cases that the donors maintained control and
continued to participate in the property given. The court held that in maintaining control,
no such intent to part with all present and future interest was established.
Delivery must also show that the donor intended for the recipient’s immediate
possession. In Hill, after delivering the stock certificates to the third party, the father
advised the third party not to deliver the certificates until and upon his death. He further
failed to disclose to the son that the stocks were being held in his name. The court
reasoned the father’s conduct showed intent for delivery to occur at a future date, his
death. The court held that the father did not have intent for the son to take immediate
possession of the stocks.
The court will most likely find that Ms. Blair intended to relinquish all present and future
interest at the time George was delivered to you and that you were to take immediate
possession of George. Unlike in Westleigh where the uncle maintained control over the
funds transferred to the niece, in our case Ms. Blair did not maintain control over
George’s health and overall care. She did not routinely pay for George’s vet bills. When
she did pay it was as a means to thank you for taking her dogs to the vet. The court will
reason that her actions show she treated George as if he belonged to you. The court will
likely find she intended to surrender all present and future dominion to George.
The court will likely find Ms. Blair intended to surrender all dominion to George. Similar
to Westleigh, in Hill, the father maintained active participation in hospital decisions and
the sale of the hospital. In our case, Ms. Blair was active in George’s life since she
routinely visited him. However, these visits were with your permission. Ms. Blair did cut
George’s hair to her liking. She also made a picture labeling it as “My Terriers” and the
picture included George, along with her two dogs. These acts were done while she was

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watching George for you and will be found as acts done after her relinquishment and
intent. Therefore, the court will likely find that Ms. Blair intended to surrender all present
and future interest over George at the time she delivered him to you.
The court will likely find that Ms. Blair intended for you to take immediate possession of
George. Delivery can be made either directly to the intended recipient or to a third party,
on behalf of the recipient. There must exist intent that the recipient is to take immediate
possession. Unlike in Hill, where the father gave the hospital stocks to a third party
attorney, actual delivery was not to occur until and upon his death. In our case, delivery
was made directly to you and your possession became immediate. Ms. Blair did not
indicate upon delivery that George would become yours at a later time or that she would
be back to retrieve him. Therefore, the court will likely find that Ms. Blair intended for
immediate possession to occur at the time she delivered George to you.
George was Accepted as a Gift.
The intended recipient must accept a gift. Generally, the court will find acceptance so
long as the intended recipient did not verbally indicate that they did not want to receive
the gift. Here, acceptance is not an issue. You wanted a dog and were thrilled to receive
George. Thus, the court will find that you accepted George from Ms. Blair.
CONCLUSION
Based on the court’s ruling in the former cases and as applied to our case facts, the court
will most likely find that Ms. Blair had donative intent. In satisfying Maine Law, the
court will find she had the intent to surrender all present and future interests in George.
Additionally, she intended for you to take immediate possession of him upon delivery
and that you accepted him. Ms. Blair’s actions after establishing this intent cannot be
reversed by her change of heart or in producing the original ownership papers. The court
will rule that George is considered a legal gift and will mandate his return to you.
Sincerely,