KEEPING CURRENT P R O B AT E CASES FEDERAL JURISDICTION: Amount in controversy determined separately in consolidated proceeding. A beneficiary brought two cases alleging a breach of fiduciary duties by the trustee in state court, which consolidated the cases. The trustee removed to federal court on diversity grounds, and the beneficiary moved for remand. In Gray v. Gray, Civil No. 22-cv-560-LM, 2023 WL 3719834 (D.C. N.H. May 30, 2023), the district court for New Hampshire held that, in the absence of state law determining whether consolidation is a merger of the cases or an administrative procedure that retains their separate identities, the court must determine whether each case meets the amount in controversy requirement. The court also held abstention is not required under Burford v. Sun Oil Co., 319 U.S. 315 (1943), because the matters do not present “difficult questions of state law” the decision of which could disrupt New Hampshire policy applicable to trust administration, a policy that is not unique to the state, in part because the state has adopted the UTC. GIFTS: Gift of motor vehicle does not require transfer of title. Shortly before dying, the donor told a friend that the donor wanted the friend to have the donor’s motor vehicle and repeated that desire in a video call with the donee, the donee’s spouse, the donor’s child, and an employee of the donor who was directed to give the keys to the vehicle to the donee. After the donor’s intestate death, the donor’s child as
Keeping Current—Probate Editor: Prof. Gerry W. Beyer, Texas Tech University School of Law, Lubbock, TX 79409, gwb@ ProfessorBeyer.com. Contributing Authors: Julia Koert, Paula Moore, Prof. William P. LaPiana, and Jake W. Villanueva.
Keeping Current—Probate offers a look at selected recent cases, tax rulings and regulations, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.
administrator refused to turn over title to the donee. At the donee’s request, the district court ordered the administrator to deliver title, and, on appeal, the Colorado intermediate appellate court affirmed in In re Estate of Liebe, No. 22CA1076, 2023 WL 4055341 (Colo. App. June 15, 2023). The court found that all the elements of an inter vivos gift were present and held that a formal transfer of title is not necessary to complete a gift of a motor vehicle. JOINT TENANCY: Execution of sales contract severs joint tenancy. The decedent and two other persons held real property as joint tenants with rights of survivorship. All three signed a contract to sell to third parties. The decedent died before closing. The decedent’s surviving spouse as executor of the decedent’s will brought a declaratory judgment proceeding seeking one-third of the proceeds of the sale. The circuit court granted the summary judgment motion brought by the other two vendors, and on appeal, the Supreme Court of Alabama reversed in Upchurch v. Upchurch, SC-2022-0478, 2023 WL 2818554 (Ala. Apr. 7, 2023). The court held that by entering into the sales contract, the sellers evidenced the intention to sever the joint tenancy. In addition, the sales contract said nothing about holding the proceeds in a joint tenancy. JOINT TENANCY: Unilateral creation of joint tenancy by fee simple
owner is a completed gift. In a case of first impression, the New Jersey intermediate appellate court held in Branco v. Rodrigues, 297 A.3d 669 (N.J. Super. Ct. App. Div. 2023) that a transfer of real property by a fee simple owner by deed to the owner and another as joint tenants is a gift to the other joint tenant when the owner dies first after recording the deed, even though the owner never informed the other joint tenant. The court affirmed summary judgment for the surviving joint tenant in a quiet title proceeding over the objection by the owner’s administrator that the transfer was an ineffective gift because of a lack of donative intent. First, recording the deed raises a strong presumption of delivery; second, the creation of a joint tenancy is presumed to be a gift, and the presumption was unrebutted; third, the presumption of a gift means that acceptance is presumed; and, fourth, the donor could not unilaterally revoke the gift and recreate the fee simple. JURISDICTION: Trustee who sued in name of the trust may amend pleading to sue as the trustee. In a dispute over a mortgage on real property held in trust, a related party was allowed to intervene and moved to dismiss. The motion was granted on the ground that the trust is not an entity capable of maintaining a suit. The court denied a motion by the trustee to amend the complaint, holding that under Oliver v. Swiss Club Tell, 35 Cal. Rptr. 324 (Cal. Ct. App. 1963), the action was void ab initio and the statute of limitations had run. The trustee appealed and the intermediate appellate court reversed in Jo Redland Trust U.A.D. 4-6-05 v. CIT Bank N.A., 309 Cal. Rptr. 3d 339 (Cal. Ct. App. 2023). The court distinguished Oliver as being decided after the entry of judgment and emphasized the trial court’s power to determine its own jurisdiction.
Published in Probate & Property, Volume 37, No 6 © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
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November/December 2023
