1

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

Amratlal C. Bhagat v. Bharat A. Bhagat (A-31-11) (068213)

Argued February 27, 2013 -- Decided January 30, 2014

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

In this appeal, in the context of cross-motions for summary judgment, the Court considers whether a father 

adduced sufficient evidence to rebut the presumption that his transfer of stock to his son was a gift.

Amratlal C. Bhagat (A.C.) is the father of Bharat A. Bhagat (B.B.), Ranjana Bhagat, and Janaki Tailor, the 

wife of Nagarki Tailor (the Tailors). In 1984, B.B., Ranjana, and the Tailors each designated a portion of their stock in 

ABB Properties Corporation (ABB Properties) as being held “in trust” for A.C., making A.C. the “beneficial owner” 

of the majority of ABB Properties shares. On June 26, 1989, A.C. signed “DECLARATION OF GIFT” and “STOCK 

POWER” documents transferring certain shares of his ABB Properties stock to B.B. The documents do not indicate 

that the transfer was temporary or conditional. On that date, B.B. also signed an “OPTION TO PURCHASE STOCK”

document giving A.C. the option to purchase any or all of the gifted shares at the price of $1 per share for five years. 

Later that year, ABB Properties’ attorney referenced A.C’s transfer of stock to B.B. in a letter to A.C. and in a letter to 

a real estate loan officer. In 1990, using the same set of forms as those used in the 1989 transaction, A.C. transferred 

additional shares in ABB Properties to B.B. According to B.B., the purpose of this transaction was for A.C. to convey 

to him, by gift, all of the remaining ABB Properties shares of which A.C. was the beneficial owner. 

A.C. and B.B. sued the Tailors in 1994. The verified complaint filed by A.C. and B.B., and certified by B.B., 

stated that A.C. owned 104 shares of ABB Properties stock and discussed a series of corporate actions taken by A.C. 

and B.B. against Nagarki Tailor. B.B. also reiterated the stock ownership distribution in the answer to the Tailors’ 

counterclaim, and in an affidavit. The Tailor litigation was resolved by settlement and consent order in November 

1999. At some point during the Tailor litigation, A.C. hand-wrote a letter to the attorney representing A.C. and B.B. in 

that litigation, stating: “It is my desire since 1989 to transfer my shares of ABB Properties Inc. to my son [B.B.] 

Kindly do so at the earliest moment.” The record does not reveal whether any further action was taken. 

On December 3, 2003, A.C. filed a complaint against B.B. asserting that he did not permanently transfer his 

shares in ABB Properties to B.B. B.B. denied that A.C. owned any stock in ABB Properties. A.C. and B.B. filed 

motions for summary judgment. B.B. certified that his representation of stock ownership in the Tailor litigation 

accounted for the fact that the corporate books reflected A.C.’s name. B.B. insisted, however, he was the “beneficial 

owner” of the stock gifted to him in 1989 and 1990 and enjoyed all of the rights of the owner of the stock. A.C. 

claimed that the transfer to B.B. was designed to secure financing for a hotel venture and was not intended to be 

permanent. The motion judge held that the position taken by B.B. in the earlier Tailor litigation did not preclude him 

from asserting that A.C. had gifted him all of his ABB Properties stock. The judge examined the evidence advanced by 

A.C. to rebut the presumption of a gift from father to son and to prove his intent concerning the stock transfers

“convincingly and without reasonable doubt.” The motion judge found that A.C. had failed to sustain his burden of 

proof to rebut the presumption of a gift, granted B.B.’s motion for summary judgment, and denied A.C.’s motion for the 

same relief. The Appellate Division affirmed. The panel found that judicial estoppel did not apply and concluded that 

“no rational factfinder could find that A.C. overcame the presumption that a completed gift occurred by certain, 

definite, reliable and convincing proof, that leaves no reasonable doubt as to the intention of the parties at the time of 

the gifts.” The Court granted A.C.’s petition for certification. 208 N.J. 382 (2011).

HELD: A person seeking to rebut the presumption that a transfer of property from a parent to a child is a gift must 

show clear and convincing evidence of a contrary intent. That person is limited to evidence antecedent to, 

contemporaneous with, or immediately following the transfer, and may also adduce proof of statements by the parties 

concerning the purpose and effect of the transfer. Applying those principles, the evidence adduced by A.C., including
2

statements made by B.B. in a prior litigation regarding the ownership of ABB Properties stock, raises sufficient factual 

issues to defeat summary judgment in this case.

1. Pursuant to the doctrine of judicial estoppel, a party who advances a position in earlier litigation that is accepted and 

permits the party to prevail in that litigation is barred from advocating a contrary position in subsequent litigation to 

the prejudice of the adverse party. The doctrine, however, does not apply when the earlier litigation settles prior to 

judgment because no court has accepted the position advanced in the earlier litigation. Because the Tailor litigation 

settled, B.B.’s statements concerning the ownership of ABB Properties stock in that matter do not bar B.B. from 

claiming that A.C. gifted all of his ABB Properties stock to him in this matter. (pp. 17-19)

2. An appellate court reviewing an order granting summary judgment must review the competent evidential materials 

submitted by the parties to identify whether there are genuine issues of material fact and, if not, whether the moving 

party is entitled to summary judgment as a matter of law. That evaluation requires a review of the motion record 

against not only the elements of the cause of action, but also the evidential standard governing that cause of action. 

There are three elements of a valid and irrevocable gift: (1) actual or constructive delivery, (2) donative intent, and (3) 

acceptance. Although the burden of proving an inter vivos gift is on the party who asserts the claim, when the transfer 

is from a parent to a child, there is a presumption that the transfer is a gift. That presumption is rebuttable by evidence 

of a contrary intent. (pp. 19-25)

3. In Peer v. Peer, 11 N.J. Eq. 432 (Ch. 1857), the court described the quality of the evidence that would be admissible 

to rebut the presumption of a gift as “convincing, and of such a character as to leave no reasonable doubt as to the 

intention of the party.” Many courts thereafter adopted a “convincing and leave no reasonable doubt as to the intention 

of the party” standard to rebut the presumption of a gift. In addition, the proofs advanced to rebut the presumption 

must be of facts antecedent to, contemporaneous with, or immediately after the transfer. Herbert v. Alvord, 75 N.J. 

Eq. 428 (Ch. 1909). The Herbert court also excepted from the antecedent or contemporaneous requirement statements 

or acts of the party to be charged with the gift. Id. at 429-30. Furthermore, this Court has found that subsequent 

conduct of the parties also may be given in evidence to corroborate the inference drawn from prior and 

contemporaneous circumstances. Weisberg v. Koprowski, 17 N.J. 362 (1955). (pp. 25-27)

4. The Court can identify no reason to depart from the standard used for more than 150 years to rebut the presumption 

that a transfer of property from a parent to a child is a gift. Because that standard appears to contain elements of the 

clear and convincing standard and the beyond a reasonable doubt standard, however, the Court discerns the need to 

clarify. The Court’s examination of the cases suggests that the standard has been understood as, and should be, clear 

and convincing. The Court views other language used in prior cases as an attempt to describe the quality of evidence 

that will satisfy the clear and convincing standard of proof. There is no reason that a person seeking to rebut the gift 

presumption should be required to meet a higher standard than clear and convincing evidence. In fact, in other 

contexts, the clear and convincing standard is applied in circumstances affecting a person’s life, liberty, ability to 

pursue a profession, or integrity. Therefore, a person who has transferred property to another, which raises a 

presumption that the transferred property was a gift, must meet the clear and convincing evidence standard of proof to 

rebut the presumption. The person seeking to rebut the presumption is limited to evidence antecedent to, 

contemporaneous with, or immediately following the transfer. A party seeking to rebut the presumption may also 

adduce proof of statements by the parties concerning the purpose and effect of the transfer. (pp. 27-33)

5. Applying these principles to the facts revealed in the summary judgment record, B.B.’s motion for summary 

judgment should have been denied. The 1989 and 1990 transfers triggered the presumption that A.C. intended to gift 

his ABB Properties shares to his son. Accordingly, A.C. was required to adduce evidence to defeat a summary 

judgment motion that raised a genuine issue of material fact regarding one, some, or all of the elements of an inter 

vivos gift, and those proofs had to rise to the quality required by the clear and convincing standard of proof. The

motion court and the appellate panel failed to consider various statements made by B.B. that contradict his position 

that A.C. permanently transferred him all of his ABB Properties stock. In particular, although the prior inconsistent 

statements made by B.B. in the Tailor litigation do not judicially estop B.B.’s current defense, those statements may be 

considered admissions of a party and evidence that may impeach B.B.’s credibility. B.B. also filed certifications in 

this matter in which he describes A.C. as the beneficial owner of the ABB Properties stock and explains his 

understanding of that term. These statements create genuine issues of fact concerning whether A.C. and B.B. 

contemplated a permanent transfer of stock. (pp. 33-36)
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The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court for 

further proceedings consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE

RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion. 
1

SUPREME COURT OF NEW JERSEY

A-31 September Term 2011

068213

AMRATLAL C. BHAGAT, 

Individually and as 

Shareholder of ABB PROPERTIES 

CORPORATION, A New Jersey 

Corporation and as a 

Shareholder of EASTERNER 

MOTOR INN, INC., a New Jersey 

Corporation,

Plaintiff-Appellant,

v.

BHARAT A. BHAGAT and CRANBURY 

HOTELS, LLC, a New Jersey 

Limited Liability Company,

Defendants-Respondents.

Argued February 27, 2013 – Decided January 30, 2014

On certification to the Superior Court, 

Appellate Division.

Joseph B. Fiorenzo argued the cause for 

appellant (Sokol, Behot & Fiorenzo, 

attorneys; Mr. Fiorenzo and Steven N. 

Siegel, on the briefs).

Jonathan I. Epstein argued the cause for 

respondents (Drinker Biddle & Reath, 

attorneys; Mr. Epstein and Karen A. Denys, 

on the brief).

JUDGE CUFF (temporarily assigned) delivered the opinion of 

the Court.

This appeal arises from the purported transfer of stock in 

a closely held corporation between a father and son. Both 
2

parties concede that when a father transfers stock to a son, a 

presumption of a gift arises. The issue is whether the father 

adduced sufficient evidence to rebut that presumption in the 

context of cross-motions for summary judgment. That issue 

implicates the applicable standard of proof, the nature and 

quality of the evidence that will satisfy that standard, and the 

manner in which the standard of proof governs the summary 

judgment analysis. We must also determine whether a position 

taken by the son in earlier litigation against other family 

members bars his current position that his father gifted to him 

all of the stock in the family business. 

Here, despite the urging of plaintiff and some reasoned 

authority elsewhere, we decline to abandon a preponderance of 

the evidence standard of proof in favor of the well-established 

clear and convincing standard. We also reiterate that every 

motion for summary judgment requires the court, trial or

appellate, to review the motion record against not only the 

elements of the cause of action, but also the evidential 

standard governing that cause of action.

Finally, we emphasize that the doctrine of judicial 

estoppel may be invoked only when a position advanced in prior 

litigation concerning the subject matter of the current 

litigation has been accepted by a court and led to a judgment in 

favor of that party. If the matter is resolved by settlement, 
3

as in this case, the circumstances warranting application of the 

bar do not exist. The prior inconsistent position, however, may 

be utilized in the current litigation as an admission and for 

impeachment purposes. 

I.

On December 3, 2003, Amratlal C. Bhagat (A.C.),

individually and as a shareholder of ABB Properties Corporation 

(ABB Properties) and as shareholder of Easterner Motor Inn, Inc. 

(Easterner), filed a complaint against his son, Bharat A. Bhagat 

(B.B.),1 Cranbury Hotels, L.L.C. (Cranbury), and various other 

corporate entities (collectively defendants). This action was 

prompted by B.B.’s creation of a new entity, Cranbury, and the 

transfer of a hotel and property from Easterner to Cranbury.

A.C. alleged that B.B. breached a fiduciary duty owed to A.C.

and converted, as his own, stock intended for A.C. A.C. also 

alleged B.B. fraudulently and deceitfully transferred the stock 

to his ownership. A.C. sought immediate access to the books and 

records of ABB Properties, an accounting, imposition of a 

constructive trust on Cranbury, appointment of a temporary 

receiver, and disgorgement or restitution of funds and property 

acquired by B.B. In the answer, B.B. denied that A.C. owned any 

stock in ABB Properties. In a counterclaim, defendants alleged 

 

1 For ease of reference, we refer to plaintiff as A.C. and the 

individual defendant as B.B.
4

that A.C. breached his obligations under power of attorney and 

breached the fiduciary duty owed by A.C. to B.B. 

A.C. and B.B. filed motions for summary judgment. The 

facts, viewed in the light most favorable to A.C., are derived 

from the certifications submitted by both parties in support of 

and in opposition to cross-motions for summary judgment.

Since the early 1970s, the Bhagat family business has 

centered on owning and operating hotels and motels. In 1974, a 

corporation known as Easterner was formed to purchase and 

operate a Quality Inn hotel in Bordentown. The majority 

stockholders in Easterner were Nagarki K. Tailor and his wife 

Janaki Tailor (the Tailors). Janaki is the daughter of A.C. and 

the sister of B.B. Neither A.C. nor B.B. owned stock in 

Easterner at that time. In 1981, Winter Park Motor Inn, Inc. 

(Winter Park) was formed to purchase and operate a Quality Inn 

in Winter Park, Florida.2 In 1982, Easterner purchased a Best 

Western hotel in Bordentown.

ABB Properties was also formed in 1981. Winter Park and 

Easterner became wholly owned and operated subsidiaries of ABB 

Properties.3 As of 1984, the Tailors and B.B. each owned one 

 

2 The record does not reflect the composition of the stockholders 

in Winter Park.

3

 ABB Properties held all fifty shares of Class-A voting stock 

and all 200 shares of Class-B non-voting stock of Easterner and 

all 100 shares of Class-A voting stock and all 600 shares of 

Class-B non-voting stock of Winter Park.
5

hundred shares of Class-A voting stock and 350 shares of Class-B 

non-voting stock in ABB Properties. Ranjana Bhagat, sister of 

Janaki Tailor and B.B., owned 100 shares of Class-B non-voting 

stock in ABB Properties. A.C. owned no stock in ABB Properties

at that time.

In 1984, A.C.’s attorney, James P. MacLean, III, drafted 

trust documents that B.B., the Tailors, and Ranjana each signed; 

the documents designated a portion of each child’s shares in ABB

Properties as being held “in trust” for A.C. B.B. and the 

Tailors each placed 52 shares of Class-A voting stock and 188 

shares of Class-B non-voting stock in trust for A.C. Ranjana 

placed all one hundred shares of her Class-B non-voting stock in 

trust for A.C. 

In a December 4, 1984 inter-office memorandum, MacLean 

wrote that he had “dictated a very simple form of authorization 

and direction in which each of the boys acknowledges that 52 

shares of voting and 188 shares of non-voting [stock] are held 

in trust for A.C. Bhagat as the beneficial owner and that on 

Bhagat’s request I am authorized and directed to transfer those 

shares to A.C. Bhagat.” 

A.C. thus became the “beneficial owner” of 104 shares of 

voting stock, constituting a majority interest in ABB

Properties. B.B., Ranjana, and the Tailors remained the owners 
6

“on the books” because no change was made in the stock ledgers 

or corporate books. 

On June 26, 1989, A.C. signed a document entitled 

“DECLARATION OF GIFT,” which conveyed his common stock in ABB 

Properties to B.B. The document stated:

For love and affection, the undersigned 

AMRATLAL C. BHAGAT, hereby transfers and 

conveys the following common capital stock 

of ABB PROPERTIES CORPORATION to and in 

favor of his son, BHARAT A. BHAGAT, [at a 

particular address in Winter Park, Florida]:

(a) 53 shares of the class A (voting) 

common capital stock of ABB Properties 

Corporation.

(b) 187 shares of the class B (non-voting 

common) capital stock of ABB Properties 

Corporation.

On the same date, A.C. signed a “STOCK POWER,” in which he 

“s[old], assign[ed] and transfer[red]” to B.B. fifty-three 

shares of Class-A voting stock, and also appointed his attorney 

“to transfer the said stock on the books of the within named

company with full power of substitution in the premises.” That 

same day A.C. signed a similar “STOCK POWER” for 187 shares of 

Class-B non-voting stock. These documents do not indicate that 

the transfer was temporary or conditional. Also on that date,

B.B. signed an “OPTION TO PURCHASE STOCK,” in which he granted 

A.C. “the option, exercisable exclusively by him, to purchase 

any or all” of the gifted shares at the price of $1 per share. 
7

This instrument provided that the option “shall expire five 

years from the date hereof or upon the death of [A.C.], 

whichever shall first occur.” 

Around the time of this transaction, A.C. lived with B.B. 

in Florida. Purportedly, in accordance with traditions of 

Indian culture, A.C. frequently spoke about the family business 

and would tell B.B. “all of this is for you only.” B.B. asserts

that “in the Indian culture, it is customary for the father to 

give everything to the eldest son.” 

On August 24, 1989, an attorney for ABB Properties, William 

A. Walker II, wrote two letters that referenced the gift. 

Walker wrote one letter to A.C. referencing the documents 

granting the gift and instructing A.C. to retain those documents 

and the proper notation of the option on the stock certificates. 

The second letter was to a real estate loan officer at Southeast 

Bank in Florida, which stated in relevant part:

Based upon certification received by us 

from Attorney James P. MacLean, III of 

Haddonfield, New Jersey, we advise that 

Bharat A. Bhagat held 48 shares of the 

voting common stock and 162 shares of the 

non-voting common stock, representing 24% 

and 20.25% of the outstanding and authorized 

shares, respectively.

In a recent transaction which occurred 

in our office Mr. Bhagat became owner of 

additional shares as follows:

53 shares of voting common stock

187 shares of non-voting common stock
8

The result of the above is that, based 

upon the certification of Attorney James P. 

MacLean III and the transaction which 

occurred in our office, Mr. Bharat A. Bhagat 

became the owner and holder of the following 

shares of common capital stock in ABB 

Properties, Inc., a New Jersey Corporation.

101 shares of Class A (voting) common 

capital stock representing 50.5% of the 

total outstanding. 349 shares of Class B 

(non-voting) common capital stock 

representing 43.6% of the total outstanding.

Under the terms of the stock 

certificate, the shares are transferable on 

the books and records of the corporation, 

which we do not maintain, but execution of 

the appropriate stock powers and delivery of 

certificates representing the transfer of 

ownership and control to Bharat A. Bhagat 

have been completed, which two items 

constitute all incidence of ownership 

necessary to vest control in Bharat A. 

Bhagat.

In 1990, using the same set of forms as those used in the 

1989 transaction, A.C. transferred 50 shares of Class-A voting 

stock and 288 shares of Class-B non-voting stock in ABB 

Properties to B.B. The parties did not use an attorney for this 

transaction but simply utilized the same forms that the 

attorneys had prepared the prior year, modified with the new 

dates and number of shares. According to B.B., the purpose of 

this transaction was for A.C. to convey to him, by gift, all of 

the remaining shares of which A.C. was the beneficial owner, 

making B.B. the “owner of ABB [Properties] stock.” 
9

Inadvertently, one share of ABB Properties remained in A.C.’s 

name. According to A.C., the 1990 transaction was intended to 

be a “re-do” of the 1989 transaction, which he contends had 

never been effective. 

In 1994, after A.C. purportedly transferred his entire 

stock in ABB Properties to B.B., A.C. and B.B. sued the Tailors 

to impose a constructive trust, to appoint a receiver, and for 

damages and an accounting regarding the operation of the 

Bordentown hotel and acquisition of a neighboring hotel by the 

Tailors. A.C. and B.B. alleged that the Tailors mismanaged the 

Best Western hotel and used Easterner’s funds to purchase a 

neighboring hotel in the name of Bordentown Hotels, Inc., a 

corporation wholly owned by the Tailors. 

The verified complaint filed by A.C. and B.B., and 

certified by B.B., stated that B.B. owned 48 shares of voting 

stock, and A.C. owned 104 shares. The complaint also related a 

series of corporate actions taken by A.C. and B.B. against 

Nagarki Tailor, A.C.’s son-in-law and B.B.’s brother-in-law,

following their discovery of his application to obtain another 

Best Western franchise. The actions undertaken by A.C. and B.B. 

removed Nagarki Tailor as President and General Manager of 

Easterner and installed A.C. as President and Treasurer of 

Easterner and B.B. as Assistant Secretary. B.B. also reiterated

the stock ownership distribution in the answer to the Tailors’
10

counterclaim, and in an affidavit executed in December 1994 in 

the Tailor litigation. 

Although A.C. had been installed as an officer of 

Easterner, since 1995, he spent most of his time living in his 

native India. During that time, B.B. ran ABB Properties, and 

A.C. received no salary or distributions from ABB Properties and

filed no tax returns in the United States. 

A.C.’s and B.B.’s stock ownership in ABB Properties was not 

at issue in the Tailor litigation, which was eventually resolved 

by settlement and consent order in November 1999. Through the 

settlement the Tailors relinquished their shares of stock in ABB

Properties; afterwards those shares were cancelled. As a result 

of the 1989 and 1990 transactions between A.C. and B.B. and the 

settlement of the Tailor litigation, B.B. emerged as the sole 

owner of all shares of stock in ABB Properties, except for one 

share left in A.C.’s name. 

In response to a motion for summary judgment in the current 

litigation, B.B. later certified that his representation of the 

stock in the Tailor litigation accounted for the fact that the 

corporate books reflected A.C.’s name. B.B. insisted, however, 

he was the “beneficial owner.” B.B. certified that “[t]his was 

an approach we followed generally from 1981-1989 when title 

remained in my name while beneficial ownership remained in my 

father’s name.” B.B. further certified that A.C. requested that 
11

B.B. not reveal the gift in the Tailor litigation. B.B. 

explained in his certification that although the statements he 

made 

in the Tailor litigation may appear at odds 

with the gifting that occurred in 1989 and 

1990 . . . my father and I had the 

understanding about distinguishing between 

legal title and beneficial ownership . . . 

[and that] I was the beneficial owner of the 

stock that had been gifted to me in 1989 and 

1990 and I enjoyed all of the rights of the 

owner of the stock with my father’s full 

knowledge and agreement. 

 

At some point during the Tailor litigation, A.C. hand-wrote 

a letter to William Hyland, Jr., the attorney representing A.C. 

and B.B. in that litigation, stating: “It is my desire since 

1989 to transfer my shares of ABB Properties Inc. to my son 

Bharat Amratlal Bhagat. Kindly do so at the earliest moment.” 

The record does not reveal whether there were any further 

communications between A.C. and his attorney or whether any 

further action was taken. The record suggests that this

transfer never occurred.

II.

In addressing the cross motions for summary judgment, the 

motion judge held that the position taken by B.B. in the earlier 

litigation with the Tailors did not bar him from asserting that 

the stock in ABB Properties had been transferred to him by his 

father as a gift. The motion judge observed that the matter had 
12

settled, no testimony had been taken from any parties, and the 

court had made no determination about any disputed issues in the 

litigation, including who owned what shares and the 

circumstances under which any party acquired any shares in any 

corporation. Rather, a judge had simply signed and filed a 

consent order. 

As to the central issue in the litigation between father 

and son, the motion judge found that the proofs concerning 

intent and delivery of the stock were overwhelming. He cited 

the declarations of gift, concurrent stock powers, and an 

undated letter from counsel for ABB Properties confirming the 

transfer of the gift documents.4 Additionally, the judge cited a 

letter from A.C. to ABB Properties’ attorney “unequivocally 

memorializing [A.C.’s] intent to transfer all his stock in ABB 

[Properties] to his son.” The judge also found that B.B. 

accepted the gift and B.B. retained the documents, thereby 

rendering both issues, acceptance and dominion, undisputed. 

Applying the presumption in favor of a gift, the judge 

examined the evidence advanced by A.C. to rebut the presumption 

and “prove convincingly and without reasonable doubt as to the 

contemporaneous intent of [A.C.] to gift 100% of the shares of 

ABB [Properties] to [B.B.].” Measured by this standard, the 

 

4 As the motion judge noted, while the parties did not dispute 

that the undated letter was not contemporaneous with the 

proposed gift, it in no way undermined the gift.
13

motion judge found that A.C. had failed to sustain his burden of 

proof, noting that “none of his proofs are antecedent or 

contemporaneous with the execution of the gift documents.”

Further, the motion judge determined that B.B.’s understanding 

or intent was immaterial to the gift analysis, and that A.C.’s 

“sworn certification[s] made more than 20 years after the time 

of the purported gift” were insufficient to rebut the 

presumption. The motion judge, therefore, granted B.B.’s motion 

for summary judgment and denied A.C.’s motion for the same 

relief. 

The Appellate Division affirmed. The appellate court

summarily rejected the preclusionary arguments advanced by A.C., 

including judicial estoppel, and adopted the reasoning of the 

motion judge. As to the stock transactions, the Appellate 

Division noted that in this state a transfer of stock by a 

parent to a child is presumed to be a gift. To overcome the 

presumption, the proof advanced must be “certain, definite, 

reliable and convincing, and leave no reasonable doubt as to the 

intention of the parties.” Moreover, the evidence advanced to 

rebut the presumption must precede the transfer or be 

contemporaneous to the transfer or originate immediately after 

the transfer. After examining the evidence marshaled by A.C., 

the panel determined that A.C. offered no proof that was 

antecedent or contemporaneous to the transaction. The Appellate 
14

Division agreed with the motion judge, finding B.B.’s acceptance 

of the stock undisputed. 

The panel acknowledged A.C.’s contention that the transfer 

to B.B. was designed solely to secure financing for another 

hotel venture. Thus, according to A.C., the transfer was never 

intended to be permanent and was also conditioned on securing 

the financing for the hotel. In essence, A.C. contended the 

shares reverted to him when B.B. failed to obtain the financing 

to further the venture. The panel also acknowledged that these 

contentions “could potentially establish a genuine issue of 

material fact if not for the parental gift presumption” and the 

heightened standard of proof as to the intention of the parties.

In the end, the Appellate Division determined that the evidence 

overwhelmingly established A.C.’s donative intent and that “no 

rational factfinder could find that A.C. overcame the 

presumption that a completed gift occurred by certain, definite, 

reliable and convincing proof, that leaves no reasonable doubt 

as to the intention of the parties at the time of the gifts.”

The Court granted A.C.’s petition for certification. 208 N.J.

382 (2011).

III.

On appeal, A.C. argues that the Appellate Division departed 

from the summary judgment standard set forth in Brill v. 

Guardian Life Insurance Co. of America, 142 N.J. 520, 540 
15

(1995), and imposed a higher standard of proof and quality of 

proof to rebut donative intent in the context of intra-family 

property transfers. A.C. contends that the appellate panel 

erred in evaluating the summary judgment motion in accordance 

with the heightened standard of “certain, definite, reliable and 

convincing proof” and also declaring that acts or statements 

made by the parties regarding donative intent are limited to

those that are antecedent, contemporaneous, or immediately 

following the transfer. A.C. maintains that reliance on case 

law that predated the modern summary judgment standard led to an 

erroneous result. A.C. argues that the appellate ruling “turns 

the summary judgment standard upside-down.”

Rather, A.C. contends that the motion judge and the 

appellate panel should have limited their review of the motion 

papers to consideration of the competent evidential materials 

presented by the parties, identification of the existence of

disputed material facts, and determination whether, viewing the 

motion record in the light most favorable to him as the nonmoving party, the competent evidential materials permit a 

rational factfinder to resolve the disputed facts in his favor. 

A.C. also argues that the Appellate Division ignored 

detailed sworn statements submitted by him in support of his 

motion for summary judgment--specifically, sworn statements made 

by him based on personal knowledge concerning the events of 1989 
16

and 1990--and in opposition to his son’s motion for summary 

judgment. In addition, A.C. contends that the appellate panel 

misinterpreted the case law requiring contemporaneous acts and

statements of intent. 

Finally, A.C. insists that statements made by B.B. in prior 

intra-family litigation are inconsistent with statements made in 

this litigation. He contends that judicial estoppel bars B.B. 

from adopting a different position about the ownership of the 

stock in ABB Properties after making contrary statements in 

litigation with the Tailors. A.C. argues that the disposition 

of the prior litigation by settlement rather than by trial is 

irrelevant. 

B.B. responds that the Appellate Division applied the 

correct summary judgment standard. He emphasizes that the 

process of evaluation of the competent evidential materials 

includes reference to the evidential standard governing the 

claim. Only then can the court determine whether genuine issues 

of material fact require resolution by the factfinder. 

B.B. also argues that case law outlining the nature and 

quality of the proofs needed to rebut the presumption of a gift 

is neither outdated nor misapplied. Finally, B.B. contends that 

none of his statements in the earlier intra-family litigation 

invoke the doctrine of judicial estoppel because no factfinder, 
17

judge or jury, ever resolved the issue of stock ownership in 

that matter. 

IV.

The threshold issue in this appeal is whether B.B. is 

barred by the doctrine of judicial estoppel to argue that the 

stock transferred by A.C. to him was a gift. If the doctrine 

applies to statements made by B.B. about ownership of the ABB 

Properties stock in prior intra-family litigation, he would be 

barred from contending that A.C. gifted those shares to him and 

summary judgment could not be granted in favor of B.B. as a 

matter of law.

A party who advances a position in earlier litigation that 

is accepted and permits the party to prevail in that litigation 

is barred from advocating a contrary position in subsequent 

litigation to the prejudice of the adverse party. Kimball 

Int’l, Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606 

(App. Div. 2000), certif. denied, 167 N.J. 88 (2001); Chattin v. 

Cape May Greene, Inc., 243 N.J. Super. 590, 620 (App. Div. 

1990), aff’d o.b., 124 N.J. 520 (1991); see also Ali v. Rutgers, 

166 N.J. 280, 287-88 (2000) (explaining that retraction of 

waiver of issue not equivalent to litigating an issue 

successfully or otherwise). At the heart of the doctrine is 

protection of the integrity of the judicial process. Cummings 

v. Bahr, 295 N.J. Super. 374, 387 (App. Div. 1996). 
18

Judicial estoppel is an extraordinary remedy. Kimball, 

supra, 334 N.J. Super. at 608. It should be invoked only to 

prevent a miscarriage of justice. Ibid.; see also Ryan 

Operations G.P. v. Santiam-MidWest Lumber Co., 81 F.3d 355, 365 

(3d Cir. 1996). It is also a doctrine that has been harshly 

criticized. Douglas W. Henkin, Comment, Judicial Estoppel—

Beating Shields Into Iron Swords and Back Again, 139 U. Pa. L. 

Rev. 1711, 1729-43 (1991). However, we have not hesitated to 

apply it when warranted. Thus, a casino employee facing 

revocation of his license due to a criminal conviction was 

barred from disavowing in the license revocation proceeding the 

factual basis of his guilty plea. State, Dep’t of Law & Pub. 

Safety v. Gonzalez, 142 N.J. 618, 632 (1995). Similarly, a 

litigant who asserted a position and obtained summary judgment 

and dismissal of a party’s claim for indemnification was barred 

from taking a different position on appeal. Richardson v. Union 

Carbide Indus. Gases Inc., 347 N.J. Super. 524, 530 (App. Div. 

2002).

Thus, the doctrine is not invoked unless a court has 

accepted the previously advanced inconsistent position and the 

party advancing the inconsistent position prevails in the 

earlier litigation. Stated differently, the doctrine does not 

apply when the matter settles prior to judgment because no court 
19

has accepted the position advanced in the earlier litigation. 

Kimball, supra, 334 N.J. Super. at 607. 

The facts presented in this appeal do not warrant 

application of this remedy. Clearly, B.B. has taken 

inconsistent positions regarding the ownership of the contested 

stock in the prior intra-family litigation against the Tailors 

and in this litigation with A.C. The prior litigation, however, 

was settled by the parties, thereby obviating the need for a 

judge to accept or reject the inconsistent position advanced by 

B.B. Indeed, it does not appear that stock ownership was an 

issue in the earlier litigation. On the other hand, as 

discussed later in this opinion, B.B.’s statements in the Tailor

litigation are admissions that may be introduced as substantive 

evidence by A.C. and used to impeach his credibility in the 

current father-son litigation.

V.

An appellate court reviews an order granting summary 

judgment in accordance with the same standard as the motion 

judge. W.J.A. v. D.A., 210 N.J. 229, 237-38 (2012); Henry v. 

N.J. Dep’t of Human Servs., 204 N.J. 320, 330 (2010).

Therefore, this Court must review the competent evidential 

materials submitted by the parties to identify whether there are 

genuine issues of material fact and, if not, whether the moving 

party is entitled to summary judgment as a matter of law.
20

Brill, supra, 142 N.J. at 540; R. 4:46-2(c). In conducting this 

review, the Court must keep in mind that “an issue of fact is 

genuine only if, considering the burden of persuasion at trial, 

the evidence submitted by the parties on the motion, together 

with all legitimate inferences therefrom favoring the non-moving 

party, would require submission of the issue to the trier of 

fact.” R. 4:46-2(c). The practical effect of this rule is that 

neither the motion court nor an appellate court can ignore the 

elements of the cause of action or the evidential standard 

governing the cause of action.

Brill v. Guardian Life Insurance Co. of America illustrates 

this proposition. Brill, supra, involved a negligence claim 

against a life insurance broker and his agency for failing to 

advise a prospective insured of the availability of immediate, 

temporary coverage upon completion of the application process. 

142 N.J. at 523. The Court reviewed the common law recognizing 

the duty owed by an insurance broker to an insured, sorted 

through the relevant and irrelevant facts asserted by the 

parties, and held that an expert opinion based on a false 

assumption did not create a genuine issue of material fact. Id.

at 542-43. Only after identifying the elements of the cause of 

action and the standard of proof governing that claim could the 

Court then determine that no reasonable jury could conclude that 

the broker’s failure to advise the plaintiff of the availability 
21

of immediate coverage upon submission of the application caused 

the lack of effective coverage at the time of the plaintiff’s 

death. Id. at 542-45. 

The need to identify the elements of the cause of action 

and the standard of proof in evaluating a motion for summary 

judgment is well-illustrated by defamation actions against a 

media defendant. In Durando v. Nutley Sun, 209 N.J. 235 (2012),

the Securities and Exchange Commission filed a civil complaint 

against two men charging them with assorted violations of 

federal securities law. Id. at 240. A regional daily newspaper 

reported that the complaint had been filed, identified the men, 

and summarized the charges against them. Id. at 241. Nothing 

in the article stated or suggested that either man had been 

arrested. Ibid. A weekly local newspaper reprinted all but the 

last three paragraphs of the original article and wrote a new 

headline for the article, which stated that the men had been 

charged in a stock scheme. Id. at 242. The local newspaper 

also prepared a “teaser” for the front page of the weekly 

publication that expressly stated that the local men had been 

arrested. Ibid. The weekly publication retracted the front 

page “teaser” three weeks later. Id. at 243. 

In reviewing an Appellate Division opinion affirming 

summary judgment in favor of the media defendant, the Court 

identified the elements a plaintiff must establish in a 
22

defamation action against a media defendant that publishes an 

article touching on a matter of public interest. Id. at 248. 

The Court also identified the elements of the cause of action of 

false light, id. at 249, and examined the actual malice 

standard, id. at 249-52. It did so because the Court recognized 

that, to defeat the media defendant’s motion for summary 

judgment, the plaintiffs had to establish that a reasonable jury 

could conclude by clear and convincing evidence that the media 

defendants acted with actual malice. Justice Albin wrote:

To defeat defendants’ motion for 

summary judgment in this case, plaintiffs 

must establish that a reasonable jury could 

conclude by “clear and convincing evidence”

that [the publisher of the weekly] published 

the erroneous teaser with actual malice.

“Although courts construe the evidence in 

the light most favorable to the non-moving 

party in a summary judgment motion, the 

‘clear and convincing’ standard in [a] 

defamation action adds an additional weight 

to the plaintiffs’ usual ‘preponderance of 

the evidence’ burden.”

[Id. at 253 (citations omitted).]

In short, the evaluation of every motion for summary 

judgment requires the court, trial or appellate, to review the 

motion record against not only the elements of the cause of 

action but also the evidential standard governing that cause of 

action. We, therefore, turn to an examination of the elements 

of a valid inter vivos gift and the nature and measure of the 

proof required to rebut the presumption of such a gift.
23

VI.

There are three elements of a valid and irrevocable gift. 

First, there must be actual or constructive delivery; that is, 

“the donor must perform some act constituting the actual or 

symbolic delivery of the subject matter of the gift.” Pascale

v. Pascale, 113 N.J. 20, 29 (1988). Second, there must be

donative intent; that is, “the donor must possess the intent to 

give.” Ibid. Third, there must be acceptance. Ibid. We have 

also recognized that the donor must absolutely and irrevocably 

relinquish “ownership and dominion over the subject matter of 

the gift, at least to the extent practicable or possible, 

considering the nature of the articles to be given.” In re 

Dodge, 50 N.J. 192, 216 (1967); accord Sipko v. Koger, Inc., 214

N.J. 364, 376 (2013); Farris v. Farris Eng’g Corp., 7 N.J. 487, 

500-01 (1951).

Actual delivery of the gifted property is necessary except 

where “‘there can be no actual delivery’ or where ‘the situation 

is incompatible with the performance of such ceremony.’” Foster 

v. Reiss, 18 N.J. 41, 50 (1955) (quoting Cook v. Lum, 55 N.J.L.

373, 374 (Sup. Ct. 1893)). A gift of stock is such a situation

because the ownership of stock is now often recorded simply in 

book form by the issuer or a broker. See N.J.S.A. 12A:8-301b. 

Therefore, “[i]n the absence of express provisions to the 

contrary, stock may be transferred by delivery of a separate 
24

written transfer, without delivery of any certificate where it 

is not in possession of the transferee.” Hill v. Warner, Berman 

& Spitz, P.A., 197 N.J. Super. 152, 162 (App. Div. 1984). In 

other words, the delivery of the stock certificate may be 

constructive, and the failure to record the transfer on the 

corporate books does not defeat the gift so long as the transfer 

is accompanied by words that express donative intent and the 

donor has divested himself completely of the property. Id. at 

162-63. 

The burden of proving an inter vivos gift is on the party 

who asserts the claim. Sadofski v. Williams, 60 N.J. 385, 395 

n.3 (1972). Generally, the recipient must show by “clear, 

cogent and persuasive” evidence that the donor intended to make 

a gift. Farris, supra, 7 N.J. at 501. When, however, the 

transfer is from a parent to a child, the initial burden of 

proof on the party claiming a gift is slight. Metro. Life Ins.

Co. v. Woolf, 136 N.J. Eq. 588, 592 (Ch. 1945), aff’d, 138 N.J. 

Eq. 450 (E. & A. 1946). In such cases a presumption arises that 

the transfer is a gift. Peppler v. Roffe, 122 N.J. Eq. 510, 515 

(E. & A. 1937); First Nat’l Bank v. Keller, 122 N.J. Eq. 481, 

483 (E. & A. 1937); Bankers Trust Co. v. Bank of Rockville Ctr. 

Trust Co., 114 N.J. Eq. 391 (E. & A. 1933); Prisco v. Prisco, 90 

N.J. Eq. 289, 289 (E. & A. 1919); Herbert v. Alvord, 75 N.J. Eq.

428, 429 (Ch. 1909); Betts v. Francis, 30 N.J.L. 152, 155 (Sup. 
25

Ct. 1862). The presumption does not apply if the parent is a 

dependent of the child. Peppler, supra, 122 N.J. Eq. at 515. 

See also Weisberg v. Koprowski, 17 N.J. 362, 372-73 (1955). The 

rationale for the presumption is that a child is considered a 

natural object of the bounty of the donor. Weisberg, supra, 17 

N.J. at 373. See Restatement (Third) of Trusts § 9(2) (2001)

(noting that resulting trust does not arise when transfer of 

property is made by one person but payment is made by another 

when recipient is spouse, dependent, or other natural object of 

person making payment). 

This presumption, however, is rebuttable by evidence of a 

contrary intent. The earliest reported case that we have 

identified that addresses the nature of the proofs and the 

standard of proof to rebut the presumption is Peer v. Peer, 11 

N.J. Eq. 432, 439 (Ch. 1857). In that case, the court held that 

a gift will be presumed when a parent advances funds to purchase 

real estate for a son and instructs that title shall be in the 

name of a child. Id. at 438-40. The presumption may be 

rebutted by evidence of “the same kind . . . deemed sufficient 

to create the presumption.” Id. at 439. The court described 

the quality of the evidence that would be admissible to rebut 

the presumption as “convincing, and of such a character as to 

leave no reasonable doubt as to the intention of the party.” 

Ibid.; accord Read v. Huff, 40 N.J. Eq. 229, 234 (E. & A. 1885).
26

In 1909, a court reiterated the Peer standard stating that

the proofs required to rebut the presumption are “convincing and 

leave no reasonable doubt as to the intention of the party.” 

Herbert, supra, 75 N.J. Eq. at 430. Ten years later, in Prisco, 

supra, a case in which a father purchased real property and took 

title in the name of his sixteen year old son, the Court of 

Errors and Appeals adopted the rule applied by the trial judge 

regarding the evidentiary burden of a party seeking to rebut the 

presumption of a gift. 90 N.J. Eq. at 289. The trial judge 

stated “the evidence must be convincing and leave no reasonable 

doubt.” Ibid.; see also McGee v. McGee, 81 N.J. Eq. 190, 194

(E. & A. 1913) (instructing that proof offered to rebut 

presumption of gift “must be certain, definite, reliable and 

convincing, leaving no reasonable doubt of the intention of the 

parties”).

In addition, the proofs advanced to rebut the presumption 

of a gift “must be of facts antecedent to or contemporaneous 

with the purchase, or so immediately afterwards as to form a 

part of the res gestae.” Herbert, supra, 75 N.J. Eq. at 429-30;

accord Prisco, supra, 90 N.J. Eq. at 289; Read, supra, 40 N.J. 

Eq. at 234; Peer, supra, 11 N.J. Eq. at 439.

In Herbert, supra, the court excepted from the antecedent 

or contemporaneous requirement statements or acts of the party

to be charged with the gift. 75 N.J. Eq. at 429-30. 
27

Furthermore, in Weisberg, supra, this Court followed the rule 

announced in Killeen v. Killeen, 141 N.J. Eq. 312, 315 (E. & A. 

1948) and Yetman v. Hedgeman, 82 N.J. Eq. 221, 223 (Ch. 1913) 

that “the subsequent conduct of the parties may be given in 

evidence to corroborate the inference drawn from prior and 

contemporaneous circumstances.” 17 N.J. at 374; see also

Bertolino v. Damario, 107 N.J. Eq. 201, 202 (E. & A. 1930) 

(explaining that gift presumption may be rebutted by later 

admissions of parties). Notably, in Weisberg, supra, this Court 

did not preclude evidence of conduct subsequent to the son’s

purchase of the house in which his mother lived to rebut the 

presumption of a gift. 17 N.J. at 374-76. 

Commentary has criticized the gift presumption between 

parent and child contending the presumption is founded on an 

undue emphasis on certain relationships. 5 New Jersey Practice, 

Wills and Administration § 4 n.1 (Alfred C. Clapp and Dorothy G. 

Black) (3d ed. 1984). In Weisberg, supra, this Court 

acknowledged the criticism of the rule presuming a gift based 

“on considerations of the closeness of the relationship or the 

extent of natural affection, []or by reason of any legal 

obligation to furnish support.” 17 N.J. at 372. The Court 

noted that the relationship between the son, who had purchased 

the house in which his mother lived, and his mother “was such 

that, but for other evidence overcoming the inference, the 
28

probability might well be inferred that [the son] did intend a 

gift of the properties to [his mother].” Id. at 373. Yet, the 

son marshaled substantial proofs not only antecedent to and 

contemporaneous with the purchase but also conduct subsequent to 

the purchase until the son’s death to defeat any presumption of 

a gift. Id. at 374-76. 

Other commentators criticize use of any standard of proof 

other than the preponderance of the evidence. 3 Austin Wakeman 

Scott, The Law of Trusts, § 458 (1939). In his treatise, 

Professor Scott opines that

[n]o good reason, however, has ever been 

suggested as to why the preponderance of the

evidence should not be sufficient to 

establish a trust, as it is sufficient to 

establish other facts in civil cases. There 

is perhaps, sufficient reason for requiring 

more than a preponderance of evidence to 

establish an express oral trust of land in 

states in which the Statute of Frauds is not 

in force. There is no reason for making 

such a requirement generally in the case of 

. . . resulting trusts or constructive 

trusts.

[Ibid.]

The Restatement also calls for use of the preponderance of 

the evidence standard of proof. Restatement, supra, § 9, cmt.

f(1). The Reporter notes, however, that case law on this issue 

is both conflicting and unclear. The Reporter relates that the 

rationale for a clear and convincing standard of proof in order 

to question beneficial ownership is the view “that there should 
29

be a strong presumption in favor of one whose title is indicated 

without qualification in a written instrument . . . and that 

there is a danger of inviting perjured testimony in cases of 

this type.” Id. at Reporter’s Notes § 9, cmt. f.

As stated in numerous decisions dating to the midnineteenth century, the standard of proof seems to create a 

standard containing elements of the clear and convincing

standard and the beyond a reasonable doubt standard. Responding 

to an argument that this Court in Weisberg also modified the 

standard of proof to rebut a presumption of a gift from no 

reasonable doubt to clear and convincing, the Appellate Division

in Turro v. Turro, 38 N.J. Super. 535, 543 (App. Div. 1956) 

observed that Weisberg never addressed the standard of proof at 

all. Nevertheless, the appellate panel referred to seventeen 

cases from 1885 to 1951 that had described the burden of proof 

as requiring clear, reliable, and convincing proof leaving no 

reasonable doubt of the intention of the parties. Turro, supra, 

38 N.J. Super. at 542. The panel recognized, however, that this 

description seemed to contain elements of the clear and 

convincing and beyond a reasonable doubt standards of proof and 

that some commentators had urged elimination of this hybrid 

standard because such a standard has the effect of giving undue 

weight to the presumption. Id. at 542-43. The panel noted that 

it was not its function to “overrule[] a proposition so 
30

obviously approved by the highest court of the State.” Id. at 

544. 

Notwithstanding the criticism of the presumption itself and 

the use of an enhanced standard of proof to rebut the 

presumption that a transfer of property, including stock in a 

family business, from a parent to a child is a gift, we can 

identify no reason to depart from our use of an enhanced 

standard of proof which has served well for more than 150 years. 

We discern, however, the need to clarify that standard and the 

proofs that may be admitted to meet it.

Although some of the earliest cases describe the standard 

of proof as “convincing and leav[ing] no reasonable doubt,”

Prisco, supra, 90 N.J. Eq. at 289; Herbert, supra, 75 N.J. Eq.

at 430, later cases added additional adjectives, such as 

“certain,” “definite,” “reliable,” and “convincing.” McGee, 

supra, 81 N.J. Eq. at 194. As noted in Turro, supra, this 

description has elements of both the clear and convincing and 

beyond a reasonable doubt standards. 38 N.J. Super. at 542-43. 

Such a hybrid standard is an anomaly and given the criticism,

not only of the very existence of the gift presumption in 

circumstances as presented in this case but also the use of any 

standard of proof other than preponderance of the evidence in 

these circumstances, we can identify no purpose in recognizing

either a hybrid clear and convincing/no reasonable doubt 
31

standard or a no reasonable doubt standard. Rather, our 

examination of the cases suggests that the standard has been 

understood as, and should be, clear and convincing. We view the 

other language used in the cases as simply an attempt to 

describe the quality of evidence, e.g., clear, cogent, certain, 

and definite, that will satisfy the clear and convincing 

standard of proof. 

This interpretation is reflected in a leading treatise on 

equity jurisprudence. As of 1941, this treatise stated, “[I]t 

is said that the presumption of a gift or advancement can be 

rebutted only by proof that is clear, convincing and 

satisfactory.” 4 John Norton Pomeroy, Equity Jurisprudence § 

1041 (5th ed. 1941). Numerous cases are cited to support this 

proposition, including several cases from New Jersey which 

employ the “reasonable doubt” language. See id. at 86-87 n.10. 

Indeed, the Model Jury Charge on the clear and convincing 

evidence standard uses similar verbiage to describe the quality 

of the evidence that will meet this standard. Model Jury Charge

1.19 provides in relevant part:

Clear and convincing evidence is evidence 

that produces in your minds a firm belief or 

conviction that the allegations sought to be 

proved by the evidence are true. It is 

evidence so clear, direct, weighty in terms 

of quality, and convincing as to cause you 

to come to a clear conviction of the truth 

of the precise facts in issue.
32

The clear and convincing standard of 

proof requires that the result shall not be 

reached by a mere balancing of doubts or 

probabilities, but rather by clear evidence 

which causes you to be convinced that the 

allegations sought to be proved are true.

Moreover, we can discern no good reason why a father 

seeking to rebut a presumption of a gift of stock to an adult 

son should be required to meet an enhanced clear and convincing

standard that requires no reasonable doubt, particularly when 

the no reasonable doubt standard applies in no other civil 

setting in this state. Furthermore, the State is required only 

to meet the clear and convincing standard to terminate parental 

rights, Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. 

Ed. 2d 599 (1982); N.J. Div. of Youth & Family Servs. v. A.W., 

103 N.J. 591, 611-12 (1986); to involuntarily commit a person to 

a psychiatric facility, Addinton v. Texas, 441 U.S. 418, 99 S. 

Ct. 1804, 60 L. Ed. 2d 323 (1979); or to commit a person 

pursuant to the Sexually Violent Predator Act, In re Commitment 

of W.Z., 173 N.J. 109 (2002). The clear and convincing standard 

of proof also governs an action to withhold life sustaining 

treatment from a person in a persistent vegetative state, Cruzan 

v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 284, 110 S. Ct.

2841, 2854, 111 L. Ed. 2d 224, 245-46 (1990); or from an

incompetent nursing home patient, In re Conroy, 98 N.J. 321, 382 

(1985); in disciplinary proceedings against an attorney or a 
33

doctor, In re Racmiel, 90 N.J. 646, 661 (1982); In re Polk 

License Revocation, 90 N.J. 550, 563 (1982); and to prove fraud, 

Fox v. Mercedes-Benz Credit Corp., 281 N.J. Super. 476, 484 

(App. Div. 1995). This list is hardly exhaustive but 

illustrates the anomaly of applying a higher standard than clear 

and convincing evidence to rebut a presumption of a gift where a 

higher standard is not applied in circumstances affecting a 

person’s life, liberty, ability to pursue a profession, or 

integrity.

We, therefore, hold that a person who has transferred 

property to another, which raises a presumption that the 

transferred property was a gift, must meet the clear and 

convincing evidence standard of proof to rebut the presumption. 

We also hold that the person seeking to rebut the presumption is 

limited to evidence antecedent to, contemporaneous with, or

immediately following the transfer. In addition, a party 

seeking to rebut the presumption may also adduce proof of 

statements by the parties concerning the purpose and effect of 

the transfer.

VII.

Applying these principles to the facts revealed in the 

summary judgment record, and all reasonable inferences from 

those facts drawn in favor of A.C., we conclude that B.B.’s 

motion for summary judgment should have been denied. To be 
34

sure, the 1989 and 1990 transfers triggered the presumption that 

A.C. intended to gift his stock in the family business to his 

son. Accordingly, A.C. was required to adduce evidence to 

defeat a summary judgment motion that raised a genuine issue of 

material fact regarding one, some, or all of the elements of an 

inter vivos gift and those proofs had to rise to the quality 

required by the clear and convincing standard of proof.

The motion court and the appellate panel properly refused 

to consider some of the evidence offered by A.C. His proffer of

statements by him years after the 1989 and 1990 transfers that 

B.B. was simply holding the shares to facilitate the conduct of 

affairs of the business while he was in India, or to facilitate 

financing of a business venture, was inadmissible. Those 

statements are neither antecedent to, contemporaneous with, or 

immediately following the transaction and thus fail to provide 

reliable evidence of the intent of the stock transfers.

On the other hand, the motion court and the appellate panel 

declined to consider various statements made by B.B. in the 

course of the conduct of the family business that contradict the 

position that A.C. transferred the entirety of his ABB 

Properties stock to his son. For example, in 1994, B.B. 

certified the facts contained in the Verified Complaint filed 

against his sister and brother-in-law. He certified that A.C. 

owned approximately 50% of the voting stock in the business. In 
35

an affidavit submitted in the same matter, he made a similar 

statement. The complaint in the prior litigation also relates a 

series of corporate actions taken by A.C. and B.B. in their 

capacity as stockholders and corporate officers of ABB 

Properties that removed B.B.’s brother-in-law from his corporate 

positions and management responsibilities at Easterner and 

installed themselves as officers of that corporation. B.B. 

certified that these facts were true. These prior inconsistent 

statements made in the prior intra-family litigation do not 

judicially estop his current defense to A.C.’s complaint that 

A.C. transferred the stock to him and that the transfer was 

intended as a gift from father to son, but these statements may 

be considered admissions of a party and evidence that may 

impeach B.B.’s credibility.

In addition, B.B. also filed two certifications in this 

matter in which he describes A.C. as the beneficial owner of the 

ABB Properties stock and his understanding of that term. 

Drawing all inferences in favor of B.B. created by this 

discourse, a question of fact arises whether A.C. and B.B. 

contemplated an unconditional transfer of the stock or simply a 

temporary transfer to facilitate other business ventures or to 

ease the ability to conduct the day-to-day affairs of the 

business while A.C. was in India. B.B. also relies on cultural 

traditions to support his position that the transfer of stock 
36

was a natural and ordinary event in the culture of this family. 

While his statement may be true, the record is barren of any 

independent support for this proposition that would permit a 

court to take judicial notice of this fact. N.J.R.E. 201(b). 

The standard of proof to rebut the presumption of a gift in 

this case is exacting. When that standard governs the 

evaluation of evidence produced by both parties in support of 

and in opposition to cross-motions for summary judgment, we can 

expect many such motions to be granted. Here, however, several 

statements by B.B. raise genuine issues of fact about whether 

the 1989-90 stock transfers were an unqualified gift from father 

to son or a mere matter of convenience to further a family 

business. The inconsistent statements in the prior intra-family 

litigation also require an assessment of B.B.’s credibility

beyond that accomplished by simply examining affidavits, 

letters, notes, and other documents.

This is a close case. Nevertheless, B.B.’s statements 

regarding the ownership of ABB Properties stock raises 

sufficient factual issues to preclude summary judgment and to 

require a trial. 

VIII.

The judgment of the Appellate Division is reversed and the 

matter is remanded for further proceedings consistent with this 

opinion.
37

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON; 

and JUDGE RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s 

opinion.
1

SUPREME COURT OF NEW JERSEY

NO. A-31 SEPTEMBER TERM 2011

ON CERTIFICATION TO Appellate Division, Superior Court

AMRATLAL C. BHAGAT,

Individually and as

Shareholder of ABB PROPERTIES

CORPORATION, A New Jersey

Corporation and as a 

Shareholder of EASTERNER

MOTOR INN, INC., a New Jersey

Corporation,

Plaintiff-Appellant,

v.

BHARAT A. BHAGAT and CRANBURY

HOTELS, LLC, a New Jersey

Limited Liability Company,

Defendants-Respondents.

DECIDED January 30, 2014

Chief Justice Rabner PRESIDING

OPINION BY Judge Cuff

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST REVERSE AND 

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUDGE RODRÍGUEZ (t/a) X

JUDGE CUFF (t/a) X

TOTALS 6