Rosado v. Rosado - Implied Trust

Posted: May 23rd, 2008 by Gaslowitz Frankel LLC

A son brought suit seeking a fifty percent ownership interest in property by means of an “implied trust” (a trust imposed by the court against one who has obtained property by wrongdoing, thereby preventing the wrongful holder from being unjustly enriched).

The claim involved a home and lot purchased by his mother in 1994. She paid the $24,000 down payment, she was the sole owner under the sales agreement, and she was the only person obligated on the mortgage. Three days after the closing, the son gave his mother a $12,000 check, noting that it was for “investment.” Eight years later, the mother transferred title to all her real and personal property into a trust. The purpose of the trust was to provide for her support, maintenance, and health care.

Sometime later, the home was put on the market to provide liquidity to the Trust to enable it to pay the mother’s expenses. In his suit, the son claimed that he and his mother had a verbal agreement to own the home as partners. The mother and trust denied that the son had any interest and filed a motion for summary judgment (a ruling that there are no issues of fact to be decided and so the party moving for summary judgment must prevail). The trial court granted the motion and the Court of Appeals affirmed.1

The type of implied trust the son attempted to establish was a “purchase money resulting trust” (a trust implied for the benefit of the person paying money for the transfer to another person of title to property). It must be shown, however, that the money was paid at or before the time of the closing, and that it was the intent of the parties at that time that the person claiming the benefit of the trust should pay the purchase money. Here, the son gave his check three days after the closing. The only evidence to the contrary was his affidavit claiming a verbal agreement with his mother, and that evidence was inadmissible.

1 Rosado v. Rosado, 2008 WL 2151717 (Ga. App. 2008)

Related News   Civil Appeals, Trust Disputes

Bean v. Wilson - Undue Influence

Posted: May 19th, 2008 by Gaslowitz Frankel LLC

The sister and brother-in-law of an elderly man hired a full-time nurse for him after he underwent a leg amputation and other medical procedures. The nurse moved into the man’s home and lived there for five years, until his death. Approximately four months after the nurse moved in, she participated in meetings with his attorney, reviewed his will with him, and was present at the execution of the will. The nurse, along with the sister and brother-in-law, prevented the man’s daughter and her children from visiting him.

After the man died, his daughter filed a caveat (objection) to the will, which left his primary residence to the nurse and the rest of his estate to his sister and brother-in-law. A jury found the will to be invalid because it was the product of undue influence. When the brother-in-law, as Executor, appealed, the Supreme Court upheld the jury verdict.1

A presumption of undue influence invalidating a will arises when a beneficiary under the will has a “confidential relationship” with the testator (exercises a controlling influence over the conduct and interest of the person executing the will).

Here, the man was almost completely dependent upon the nurse for all of his personal and medical needs, she isolated him from his daughter, and she took part in the preparation of the will. That evidence was sufficient to support a jury finding that the will was the product of undue influence by the nurse. The will was therefore invalid, and the daughter became the sole beneficiary of her father’s estate.

1 Bean v. Wilson, 2008 WL 2077911 (Ga. 2008)

Related News   Caveat, Civil Appeals, Undue Influence, Will Disputes, Will and Estate Disputes