Court of Appeals of Indiana | Opinion 27A05-1603-EU-507 March 9, 2017 Page 1 of 8

ATTORNEYS FOR APPELLANT

Rebecca L. Loeffler

H. Joseph Certain

Marion, Indiana

ATTORNEY FOR APPELLEE

Michael D. Conner

Marion, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Jay Garrison,

Appellant-Respondent,

v.

Pamela Garrison,

Appellee-Plaintiff.

March 9, 2017

Court of Appeals Case No.

27A05-1603-EU-507

Appeal from the Grant Superior 

Court.

The Honorable Jeffrey D. Todd, 

Judge.

Cause No. 27D01-1508-EU-140

Shepard, Senior Judge

[1] When someone on his deathbed transfers his property under circumstances 

where competence may be in question, how should the burden of proof 

concerning the transfer be applied?

Facts and Procedural History

[2] While on his deathbed, Thomas R. Garrison transferred title on two cars to one 

of his sons, Jay Garrison. After Thomas’ death, his widow Pamela Garrison as 
Court of Appeals of Indiana | Opinion 27A05-1603-EU-507 March 9, 2017 Page 2 of 8

the personal representative of the estate, filed a petition to recover assets. She 

contested what she deemed inter vivos gifts of the cars to Jay and sought to have 

them returned to the estate, explicitly disputing Thomas’ competency. Jay 

intervened, challenging Pamela’s petition. The trial court ordered the return of 

the vehicles to the estate, finding that they were gifts causa mortis for which 

Thomas was not competent to form donative intent. The trial court certified its 

order for interlocutory appeal. Agreeing with the trial court’s conclusion that 

the evidence of Thomas’ competence was in equipoise, and, thus, the assets 

should be recovered by the estate, we affirm, albeit on other grounds.

[3] Pamela and Thomas were married for twenty-eight years before Thomas’ death, 

and while no children were born of the marriage, they each had children from 

prior relationships. Thomas was diagnosed with terminal lung cancer on July 

27, 2015, ultimately passing away on August 9, 2015. On August 11, 2015, two 

days prior to Thomas’ funeral, Jay, who was accompanied by police officers, 

came to Pamela and Thomas’ house to take possession of a 2013 Chevrolet 

Corvette Z06 and a 2006 Ford Explorer XLT. Those vehicles had been titled in 

Thomas’ name, but as of July 30, 2015, were titled in Jay’s name. 

[4] An unsupervised estate was opened on August 18, 2015. Pamela filed a 

petition to recover assets, seeking to nullify the inter vivos gifts of the vehicles to 

Jay.

[5] Those who testified at the contested hearing agreed that Thomas frequently 

smoked cigarettes, especially prior to his death, and that he consumed whiskey
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and beer in increasingly large quantities before his death. Most witnesses 

acknowledged that after his diagnosis, Thomas was sad and in considerable 

physical pain. 

[6] According to some, including Jay, Thomas’ sister Janet Baller, and Janet’s 

husband David Lee Baller, Thomas’ behavior in the period leading up to his 

death remained fairly consistent with behavior they had observed over the 

years. Thomas was an alcoholic, who smoked a great deal, and had an unusual 

sense of humor. 

[7] In contrast, Pamela testified that beginning in June 2015, Thomas exhibited 

drastically changed behavior, such as going outdoors wearing only a winter 

coat and racing helmet, and crawling on the living room floor searching for a 

missing air pump he thought would be located under the couch. Pamela’s 

daughter Carla Thompson, who had grown up in Thomas’ household, testified 

that at the beginning of summer Thomas’ physical and mental health had 

deteriorated noticeably. She observed him fall often, lose his balance, become 

weaker and thinner, and become completely incontinent. She often had to 

insist on supplying him with clean bedding where he lay. She heard him say 

things that did not make sense, engage in verbal arguments with Pamela

without realizing it, and call out the name of his childhood dog instead of the 

name of his current dog. 

[8] Thomas’ good friend Dan Hanthorn had a conversation with Thomas after the 

diagnosis about why he was going to heat an ice pick and lie down on it to 
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relieve his pain, ultimately removing the ice pick from the hands of Thomas’ 

grandson, who had been enlisted by Thomas to help in this enterprise. 

[9] The trial judge concluded that the evidence of Thomas’ competency to make a 

gift causa mortis was evenly split, and that the vehicles must therefore be 

returned to the estate. Jay now appeals. 

Discussion and Decision

[10] Jay argues that 1) the trial court erroneously concluded it was a gift causa mortis

as opposed to a gift inter vivos, 2) applied the wrong standard of review, and 3) 

based its decision on insufficient evidence. 

[11] Pamela raised a straight claim of incompetence in her petition to recover assets. 

A review of a variety of standards of review, burdens of proof, and burdens of 

going forward, will aid in resolving this appeal. 

[12] There are two different kinds of gifts—inter vivos gifts and gifts causa mortis. An 

inter vivos gift is one where the donee becomes the absolute owner of a thing 

given in the lifetime of the donor. Dunnewind v. Cook, 697 N.E.2d 485, 489 n.3 

(Ind. Ct. App. 1998), trans. denied. An inter vivos gift is made when: (1) the 

donor is competent to contract; (2) the donor has freedom of will; (3) the donor 

intends to make a gift; (4) the gift is completed with nothing left undone; (5) the 

property is delivered by the donor and accepted by the donee; and (6) the gift is 

immediate and absolute. Id. 
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[13] A gift causa mortis, on the other hand, is accomplished when: (1) the gift was 

the donor’s property; (2) the gift was given when the donor was in peril of death 

or while under the apprehension of impending death from an existing malady; 

(3) the donor dies as a result of the disorder without intervening recovery; and,

(4) there was actual or constructive delivery of the thing given to the donee with 

the intention that the title vest conditionally upon the death of the donor. 

Dunnewind, 697 N.E.2d at 489 n.2.

[14] Delivery of the gift—inter vivos or causa mortis—is an indispensable requirement 

without which the gift fails. Heaphy v. Ogle, 896 N.E.2d 551, 557 (Ind. Ct. App. 

2008); Hopping v. Wood, 526 N.E.2d 1205, 1207 (Ind. Ct. App. 1988), trans. 

denied. Still, manual transfer is not always necessary. Id. It is sufficient if the 

delivery is as complete as the thing and the circumstances of the parties will 

permit, because delivery may be actual, constructive or symbolic. Heaphy, 896 

N.E.2d at 557 (citing Lewis v. Burke, 248 Ind. 297, 226 N.E.2d 332, 336 (1967)).

[15] The mental capacity required to make a valid inter vivos gift is the same as the 

capacity required to execute a will. Guardianship of Fowler v. Fowler, 175 Ind. 

App. 386, 387, 371 N.E.2d 1345, 1346 (1978) (quoting Lewis v. Teegarden, 145 

Ind. 98, 101, 40 N.E. 1047, 1048 (1895)); but cf., Henry’s Indiana Probate Law 

and Practice 5 § 32.20 at 32-111 (competency requirement for donor of inter

vivos gift is “business judgment” test of contracts rather than the weaker mind 

test of a testator). The same is true of the donor of a gift causa mortis, who

“must possess sufficient mental capacity to make the gift, that is, must be 

mentally competent or of sound mind.” 38A C.J.S. Gifts § 101 (2016). Indeed, 
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“generally, the same degree of mental capacity is required to make a gift causa 

mortis as is required to make a will.” Id.; Restatement (Third) of Property 

(Wills & Don. Transfers) § 8.1 TD No 3 (2001). The determination of mental

capacity is tested at the moment the gift is made. 38A C.J.S. Gifts § 101 (2016). 

[16] The parties to this case contest the burden of establishing the type of gift versus 

the presumptions of competency for each kind of gift, the burden imposed on 

the challenger, and the burden of going forward with corresponding rebuttal 

evidence. Resolution of the appeal turns on whether the parties have met their 

respective burdens on the issue of competency. 

[17] For an inter vivos gift, when determining whether a transfer qualified as such, the 

burden of proof is a preponderance of the evidence. In re Estate of Deahl, 524 

N.E.2d 810, 812 (Ind. Ct. App. 1988), trans. denied. For a gift causa mortis, 

because of the opportunity for the perpetration of fraud on the decedent, the 

evidence establishing such a gift must be clear and convincing, and must be 

accompanied by a delivery of the subject matter. In re Collinson, 231 Ind. 605, 

108 N.E.2d 700, 701, (1952) (citing 24 Am. Jur., Gifts, § 129, p. 797). The 

burden cannot be met by the sole uncorroborated testimony of the donee. 

Collinson, 108 N.E.2d at 702.

[18] In Branstrator v. Crow, 162 Ind. 362, 69 N.E. 668 (1904), the children of a 

deceased contested the competency of the testator. Our Supreme Court 

acknowledged that once these plaintiffs established incapacity of the testator by 

a preponderance of the evidence, the presumption of incapacity arose. Id. at 
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669. The prima facie case would be made, and if the defendants came forward 

with no evidence to establish competency, the plaintiffs would prevail. Id. Yet, 

if the defendants successfully prevented the plaintiffs from establishing 

incompetency by a preponderance of the evidence, the plaintiffs’ claim would 

be defeated. Id. If the evidence of competency was in equipoise, then the 

plaintiffs’ claim would be defeated. Id.

[19] Following these lines alone, Pamela’s claim would fail and the vehicles would 

remain in Jay’s hands. Still, as a trial court may be affirmed on any grounds 

apparent in the record, we conclude that the outcome ordered by the court was 

correct. See Campbell v. El Dee Apartments, 701 N.E.2d 616, 620 n.3 (Ind. 1998) 

(“We acknowledge the trial court’s ruling may be affirmed on any ground 

supported by the evidence of record.”). 

[20] Certain transfers are viewed differently based on the relationship of the donor 

and donee. In Lucas v. Frazee, 471 N.E.2d 1163, 1166 (Ind. Ct. App. 1984), we 

examined whether a deed should be rescinded because it was procured through 

constructive fraud or upheld as a gift. We acknowledged that establishment of 

the existence of certain relationships, such as parent and child, lead to a 

presumption that the questioned transaction was the result of undue influence 

exerted by the dominant party, constructively fraudulent, and, therefore, void. 

Id. at 1166-67. In that situation, the burden of proof shifts to the dominant 

party to demonstrate that the transaction was conducted at arm’s length, and 

thus was valid. Id. at 1167. The dominant party must rebut the presumption of 

fraud by clear and unequivocal proof. Id. Evidence of the donor/subordinate 
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party’s competence is relevant to consideration of the validity of such gift. See 

In re Estate of Deahl, 524 N.E.2d 810, 812 (Ind. Ct. App. 1988) (assets properly 

excluded from estate as gifts made prior to donor’s death).

1

[21] Inasmuch as Thomas and Jay were father and son, the presumption of undue 

influence arose with respect to the transfer. Jay presented testimony that 

Thomas was competent at the time of the transfer, and that Jay possessed 

certificates of title to the two vehicles dated July 30, 2015. Pamela, however, 

presented testimonial evidence of Thomas’ incompetency before and at the time 

of transfer. The trial court found the evidence of competency was evenly split. 

Jay, therefore, has not rebutted the presumption of undue influence, and the 

estate is entitled to recovery of the vehicles.

Conclusion

[22] For the foregoing reasons, we affirm the decision of the trial court.

[23] Affirmed. 

Riley, J., and Kirsch, J., concur.

 

1 Additionally, if the gift was a gift causa mortis, the possibility of fraud raises the burden of proof for 

establishing the gift.