## Facts

- Olga V. Watson was an elderly woman whose health declined near the end of her life.
- Edward P. McCarton managed the apartment building where Watson lived and assisted her with daily affairs; she later moved in with him.
- Watson executed a power of attorney in McCarton’s favor.
- Two days before her death, Watson told McCarton’s friend, MarJean, that she wanted her affairs put in order before she died.
- Watson directed McCarton to write down how she wanted certain assets distributed.
- McCarton prepared a handwritten memorandum stating Watson’s directions: (1) McCarton would receive Watson’s stocks and bonds (later valued at about $235,600); (2) Watson’s sister, Berta, would receive a Washington Mutual bank account (later valued at about $108,000); and (3) the remainder of Watson’s accounts (later valued at about $246,000) would be held in trust for the children of McCarton’s nephew, with McCarton as trustee.
- McCarton read the memorandum to Watson; MarJean read it again; Watson orally approved it but was physically unable to sign.
- McCarton and MarJean signed the memorandum in Watson’s presence.
- Stock certificates and bankbooks were nearby (in McCarton’s apartment or an apartment across the hall), but Watson did not hand them to McCarton and did not direct that they be retrieved and delivered to her for transfer.
- Watson made remarks indicating McCarton knew where the documents were (e.g., “You know where they are” / “There they are”), but no transfer of possession occurred.
- Watson was taken to the hospital the next evening and died early the following morning.
- After Watson’s death, a previously executed will was found. It left one-half of the estate to Berta and one-half to Berta’s nephew, rather than to McCarton or the trust beneficiaries.
- The estate refused to carry out the memorandum. McCarton sued on behalf of himself and as alleged trustee, claiming Watson made valid gifts causa mortis of the securities and accounts.
- The trial court dismissed the complaint for failure to prove delivery; McCarton appealed.

## Issues

1. Whether Watson’s oral instructions and the written memorandum, without transfer of the stock certificates and bankbooks (or equivalent indicia of ownership), satisfied the delivery requirement for a gift causa mortis.
2. Whether Watson’s statements about the nearby location of the certificates and bankbooks could constitute constructive or symbolic delivery when manual delivery was practicable.

## Decision

- The Washington Court of Appeals affirmed the trial court’s dismissal of McCarton’s complaint.
- The court held that the alleged gifts causa mortis failed because Watson did not complete delivery of the securities and bank accounts (or their controlling documents).
- The court declined to find constructive or symbolic delivery where the items were readily capable of manual delivery and no clear act placed them under McCarton’s control as a completed gift.

## Legal Principles

- A gift causa mortis requires: (1) the donor’s contemplation of impending death, (2) intent to make a present gift conditioned on death, (3) delivery that relinquishes dominion and control, and (4) the donor’s death from the contemplated peril.
- Delivery is an objective safeguard; it must show the donor has given up control of the property in a way consistent with an immediate transfer (subject to the gift’s conditional nature).
- Actual delivery is generally required when the property, or the documents that represent and control it (such as stock certificates and bankbooks), can be physically delivered without meaningful difficulty.
- Constructive or symbolic delivery is limited to situations where manual delivery is not reasonably possible; it is not a substitute for delivery simply because intent is clear.
- A deathbed memorandum (especially one not signed by the donor and not executed with will formalities) may show intent, but it does not, by itself, transfer ownership without the required delivery.
- A donee’s access to the donor’s property, or a donor’s statement that the donee knows where the property is located, does not alone establish that the donor surrendered dominion and completed delivery of a gift causa mortis.

## Conclusion

The court affirmed dismissal because Watson’s instructions and memorandum reflected intent but not completed delivery: the stock certificates and bankbooks were close at hand and could have been physically transferred, yet Watson neither handed them over nor took another clear step that divested her control, so no gift causa mortis was formed and the property remained in the estate to pass under the will.


McCarton v. Estate of Watson, 693 P.2d 192, 39 Wash. App. 358 (1984)