Gift by Poetry: Dogged Unfairness or Poetic Justice?
In honor of April Fools Day (and National Poetry Month), today’s post reviews a new Illinois appellate court decision that seems like a spoof (or a law school exam question) — but isn’t. There are usually a handful of Illinois cases each month dealing with estate or trust issues. Many involve esoteric procedural matters that are interesting only to trusts and estate geeks. On occasion, though, there is a decision that is either legally significant, highlights important legal principles or is interesting/entertaining. Koerner v. Nielsen falls mainly in that last category.
I give my dog to thee
The facts are fairly straightforward. On November 5, 2010, Jennifer Koerner adopted a dog named “the Stig” (Wikipedia tells me this is the name of a character on the British TV show ‘Top Gear’) from the Anti-Cruelty Society in Chicago.
On Christmas day 2010, Ms. Koerner penned a poem in which she apparently expressed her intent to give the Stig to her then live-in boyfriend, Kent Nielsen.
Fast forward 13 months…
Koerner and Nielsen ended their relationship in February 2012, at which time Mr. Nielsen moved out — and took the Stig with him.
Koerner pleaded with Nielsen to bring the Stig “home” because she and her (other?) dog, Jessie, missed the Stig. Nielsen was willing to allow Koerner some visitation with the Stig, but only if she would acknowledge his “total ownership” of the Stig.
Did the poem constitute a valid gift of the Stig?
After a bench trial, Cook County Circuit Court Judge Eileen O’Neil Burke found that Ms. Koerner had gifted the Stig to Mr. Nielsen by way of the poem, and therefore Nielsen was the Stig’s rightful owner. Koerner appealed.
After a procedural discussion involving a Bystander’s Report, replevin and burdens of proof, the appellate court ultimately analyzed whether Koerner had made a valid inter vivos (lifetime) gift of the Stig to Nielsen. The burden was on the donee, Nielsen, to prove, by clear and convincing evidence, each element of an inter vivos gift, which are:
- Donative intent by the donor;
- The donor’s parting of exclusive dominion and control over the subject of the gift; and
- Delivery to the donee.
Koerner apparently conceded that the poem evidenced her expression of donative intent to gift the Stig to Nielsen on Christmas 2010. The actual poem wasn’t even submitted to the appellate court (more on that later).
Instead, Koerner argued that she revoked her donative intent after Nielsen moved out. But, the court noted that unless the gift was “conditional”, donative intent is determined only at the time of the gift and cannot be later revoked. I call this the “doctrine of no takebacks”.
There was no evidence, however, that the gift was conditional. For example, if they had been engaged, the gift might have been considered to have been made in contemplation of marriage, and thus conditional on marriage. But that was not the case here.
As for the second element, the court found that Koerner had acknowledged that she gave up exclusive (even if not complete) control — and that was sufficient.
What about delivery of the Stig? The court found that their cohabitation negated the need for physical delivery or for immediate changes to title, insurance or microchip identification.
The judgment of the circuit court of Cook County was affirmed. Mr. Nielsen retained the Stig.
Wait, where is that poem?
You really want to see that poem, don’t you? I do. Inexplicably, it wasn’t submitted to the appellate court for the record. Maybe it went something like:
I love you so very much
On this white snowy Christmas Day
I unconditionally give you the Stig
Now what could possibly go wrong?
This case brings a whole new meaning to “the gift of poetry”, doesn’t it? I can’t help but wonder though if the result might have been different had the poem been written on April Fools Day rather than Christmas.
4/22 UPDATE: Mr. Nielsen sent me the poem. Read it here.
A love poem penned on Christmas Day
How could it ever bite her?
Until the lover walked out of her life
And took the Stig to spite her.
O poets beware what you write;
The law’s looking over your shoulder.
Write verse for an anthology of poetry
And not for a legal brief folder.
I love it! Thanks.