Unlawful Detainer Attorney Everett A. Holum Tacoma, Washington Lawyer Probate Estate Planning Real Estate Law

The following is a memorandum of authorities in a case where a mother deeded property to two of her three daughters. The third daughter became more involved in her mother's life and persuaded the mother to get her property back. The trial court ruled that there was no undue influence to get the mother to sign the deed and that no constructive trust existed between the mother and the two daughters. Therefore, the property was deeded as a gift and did not have to be deeded back to the mother.

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF PIERCE

COMES NOW the Defendants, "B1" and "B2", by and through their attorney Everett Holum and submits the following Memorandum of Authorities.

In or about October 1988, Plaintiff "A" contacted her daughter "B1" to take her to Ms. "A"'s attorney's office for the purpose of preparing a new will. Attorney "Z" was chosen because he had represented Plaintiff in her divorce a year or so earlier. At the time the new will was to be prepared, Plaintiff was approximately 82 years old. The parties agreed that Plaintiff was fully mentally competent and capable of handling her own financial affairs. In addition, Plaintiff lived in her home and cared for all of her physical as well as financial needs by herself. She maintained a close personal relationship with "X" whom she had divorced shortly before. Plaintiff's daughters, "B1" and "B2", together transported Plaintiff to Plaintiff's attorney's office. Upon arriving, Defendants waited in the reception area while Plaintiff conversed alone with Mr. "Z". Defendants had virtually no input into the decisions being made by Plaintiff. This was typical of Plaintiff's behavior since her history was one of making her own decisions. After Plaintiff's conference with Mr. "Z", she came out of the conference room together with Mr. "Z" and advised the Defendants that Plaintiff was going to deed her condominium to the Defendants. Both Ms. "B1" and Ms. "B2" were surprised at this announcement since no discussion of deeding the property to Defendants prior to Plaintiff's conference with Mr. "Z" ever occurred.

The only financial transaction that has occurred between either of the two Defendants and Plaintiff prior to Plaintiff deeding her property to Defendants was Plaintiff's occasion to loan her daughter "B2" money. The decision to loan money to Ms. "B2" was made by the Plaintiff alone. Ms. "B2" was required and, in fact, did pay the loans back in full. The transactions between Ms. "B2" and the Plaintiff were in effect an arms length transaction. In 1992, Plaintiff's third daughter "Y" became more involved in her mother's life. In 1994, the Defendants sold the property after having spent approximately $18,000.00 to improve the same. In addition, after the Plaintiff moved into a retirement home in 1994, the Defendants began making payments on the underlying mortgage as well as taxes and insurance. This was done at the request of Plaintiff's other daughter "Y". At Plaintiff "A"'s deposition on November 30, 1995, she testified that she was never taken care of in her person or finances by either of the Defendants. She further testified that she was aware that her daughter "B1" had sold the property and kept the money, but that she doesn't need it and "B1" is welcome to it. She further testified that she didn't need the money so she wasn't too upset when the condominium was sold by her daughters.

A. EVEN THOUGH PLAINTIFF AND DEFENDANTS HAVE A PARENT-CHILD RELATIONSHIP, A CONFIDENTIAL RELATIONSHIP DID NOT EXIST.

In order for Plaintiff to prevail and set aside the transfer of real property to the Defendants, Plaintiff must have established a "confidential relationship" that existed between her and her daughters "B1" and "B2". Lewis v. Estate of Lewis, 45 Wn.App. 387, 725 P.2d 644 (1986). The Lewis case not only establishes the legal foundation that must be proved by Plaintiff, but also serves as a precedent as to what this court's findings should be under the facts of this case. The Lewis case starts off by holding that the general rule to be that one who seeks to set aside an intervivos gift has the burden of showing the invalidity of that gift. In Re the Estate of Soderstran, 35 Wn.2d 448, 213 P.2d 949 (1950). The burden of proof shifts if a confidential relationship existed between the donor and donee. Koppang v. Hudon, 36 Wn.App. 182, 672 P.2d 1279 (1983); White v. White, 33 Wn.App. 364, 655 P.2d 1173 (1982); and Lewis v. Estate of Lewis, supra. The Lewis case is interesting in the fact that it involved the lawsuit by a mother against the estate of her son. The court in Lewis held that even though the trial court found that the real property was the mother's major asset, the transfer did not leave the mother impoverished. In addition, there was no showing of special confidence in the child's advice nor that the son purported to advise his mother with her interest in mind. Most importantly, the mother did not depend on her son to make her decisions for her. Additionally, she did not depend on his advice to form the basis of her opinion even though she valued that opinion. Because of the independence of the mother, there was no opportunity for over-reaching by the son.

The Plaintiff cites the case of Pedersen v. Bibioff, 64 Wn.App. 710, 828 P.2d 1113 (1992) to support her position. Pedersen found that a confidential relationship did exist between a father and his son. The basis of the finding of the confidential relationship was that the father was unable to read, write, or understand written English, that the son lived with the father for several years prior to the father's death, and that the father relied on and trusted the son to assist him in paying bills and taking care of his business matters. The court's decision in Pedersen was not based upon complete trust, love and devotion as Plaintiff would have this court believe in her brief. The facts existing in Pedersen supporting the finding of confidential relationship do not exist in this case. In Pedersen, the father and son lived together for several years. In this case, the mother lived alone for many years both before and after she transferred the property. In Pedersen, the father was very limited in his communication ability due to his Russian heritage. In the case at hand, Plaintiff not only had full capability of communicating in English, she handled all her own legal affairs. In addition, in Pedersen, the son accompanied the father into the attorney's office and had his own (son's) legal work done at the same time. In this case, the legal work was done solely at the direction of the Plaintiff without any prior knowledge of the Defendants.

It is important to remember that parentage alone does not create a confidential relationship between the parent and child. Lewis v. Estate of Lewis, supra; McCutcheon v. Brownfield, 2 Wn.App. 348, 467 P.2d 868 (1970). The case of McCutcheon stated that the parent-child relationship may furnish an occasion for an existence of a confidential relationship. Such an occasion exists where a parent becomes dependent on a child for support and maintenance or for protection in business matters. The child, by virtue of the fact that there is a personality and superior knowledge, assumes the role of advisor that is accepted by the parent. In such an instance the child acquires a status which brings about a confidential relationship. No such status existed in the case at hand. In 1988 the Plaintiff lived alone or with her close personal friend "X". She handled her own financial affairs until receiving assistance from her daughter "Y". She had both full mental and physical faculties at all times.

As indicated in Lewis v. Estate of Lewis, where no confidential relationship has been shown to exist, the burden is on the Plaintiff to show her gift to her daughters was not valid. Lewis v. Estate of Lewis, supra. The motives of Plaintiff did not affect the validity of the gift. Lewis v. Estate of Lewis, supra. Again in Lewis, the court placed importance on the fact that no evidence was presented to show that Mrs. Lewis was not capable of understanding the full import of her actions in the year in which she deeded her property to her son. Likewise, in 1988, there can be no claim that Mrs. "A" did not understand the nature of her transaction. She signed four separate deeds on two separate dates. Plaintiff's counsel has supplied a letter admitting that she was fully competent at the time the deeds were signed.

C. THE ONLY WAY PLAINTIFF CAN PROVE THAT THERE WAS NO DONATIVE INTENT IS TO PROVE DEFENDANTS' EXERCISE OF UNDUE INFLUENCE IN PERSUADING THEIR MOTHER TO SIGN THE DEEDS.

Without a confidential relationship, Plaintiff has the burden of proving that she did not have intent to give the property. The only actual way that such proof can be obtained is to show that the Defendants exercised undue influence over her to obtain her signatures on the deeds. Lewis v. Estate of Lewis, supra; Pedersen v. Bibioff, supra. Undue influence did not exist in the case at hand. Plaintiff was in full control of her mental facilities. Plaintiff handles her own financial affairs. Plaintiff met with an attorney she had previously represent her in her divorce. She met with the attorney alone. No discussion regarding deeding her property took place until after her meeting with her attorney when she and the attorney discussed the matters with Defendants in the waiting room. In addition, Plaintiff has stated that she does not need the money and does not want it back. Plaintiff's position in her trial memorandum regarding Plaintiff not recalling the gift to her daughters is just simply incorrect. She testified in her deposition that she knew her daughters held the property in their name. Just because she does not remember the details presently of what the exact nature of what she did in 1988 does not negate the act itself.

Plaintiff is asking that a constructive trust be established for the benefit of Plaintiff. In order to establish a constructive trust, the person claiming the same must prove that a constructive trust exists by clear, cogent and convincing evidence. In Re the Estate of Thornton, 14 Wn.App. 397, 541 P.2d 1243 (1975) alsoBaker v. Leonard, 120 Wn.App. 538, 843 P.2d 1050 (1993). Baker is interesting in the similarities to the case at hand. In that case, Leonard's name was put on a joint account with rights of survivorship. Leonard assumed that her name was being put on the account so that she would be able to write checks in the event the decedent became too ill to care for herself. The court held that a constructive trust would not be imposed even though the decedent had stated in her will that the bank account was placed in a joint name for convenience purposes only and that there was no intent of conveying that interest to the joint signature. Likewise, the evidence here does not support the imposition of a constructive trust. This is especially true in light of Plaintiff's own testimony that she did not need the money from the sale of the home to support her.

Plaintiff cannot show by present testimony that she did not have the donative intent necessary to transfer property in 1988. The Defendants did not have a confidential relationship with the mother as the term confidential relationship is defined by law. The Defendants did not use any undue influence to obtain their mother's signature on the deeds that transferred the real property to them. The court should leave the parties where they are presently at. Respectfully submitted this 9th day of July 1996. EVERETT HOLUM, P.S.

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