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Holloway v. Wachovia Bank & Tr. Co., N.A. - 333 N.C. 94, 423 S.E.2d 752 (N.C. 1992)

Rule:

The essential elements of a gift inter vivos are: (1) donative intent, and; (2) delivery, actual or constructive.

Facts:

When plaintiff Timothy S. Holloway, Jr., was a minor, his grandfather created a $20,000 certificate of deposit ("CD") with defendant Wachovia Bank & Trust Company, N.A., ("Bank"). The CD named Holloway as payee, with the grandfather as agent. Upon the grandfather's death, the CD was paid to Holloway's mother and to the grandmother, in Holloway's name. The proceeds were rolled over into new CDs with Holloway as payee and "by" mother. The mother presented one CD for payment, which the Bank paid to her. Holloway discovered the payment to the mother and filed a lawsuit against the Bank in North Carolina state court seeking to recover the value of the CD, plus interest. The trial court granted the Bank's motion for summary judgment. On appeal, the court of appeals affirmed, reaffirming the trial courts decision that no completed inter vivos gift had been made between the grandfather and Holloway. Holloway's petition for discretionary review was granted.

Issue:

Was the CD purchased by the grandfather a completed inter vivos gift to Holloway?

Answer:

Yes.

Conclusion:

The state supreme court reversed the appellate court's judgment and remanded the case to that court for further remand to the trial court for entry of summary judgment for Holloway. The court held that the CD purchased by the grandfather was a completed inter vivos gift, as the grandfather had indicated his donative intent by creating the CD in Holloway's name, and the grandfather's act of holding it for the benefit of and as agent for Holloway amounted to delivery.

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