Brousseau v. Brousseau

¶ 1 Mother appeals a superior court decision granting daughter summary judgment and thereby entitling her to one-half of the proceeds from the sale of mother’s property as joint tenant. We reverse the summary judgment order and remand for further proceedings. ¶ 2 Mother acquired her interest in the property at issue in 1965 when it was deeded to mother, mother’s mother, and mother’s father as joint tenants with rights of survivorship. Mother’s parents purchased the property for their own use, but included mother as a joint tenant on the deed solely for estate planning purposes — to avoid probate upon then’ deaths. In 1980, mother moved to the property to care for her elderly parents. Mother’s father died in September of 1983. In March 1984, while mother’s mother was still alive, mother signed a deed purporting to convey title to the property to herself and daughter as joint tenants with rights of survivorship. Mother claims that it was not intended as a gift, and that both parties understood that the deed was an estate planning tool. Mother’s mother died three months after the 1984 deed was signed. ¶ 3 Mother currently lives at an assisted-living facility. In 2005, mother decided to sell the property to help her meet the monthly expenses for the facility. Daughter allegedly refused to quitclaim her interest in the property to mother or to permit mother to receive the entire proceeds from the sale of the property. Prospective buyers of the property later informed mother of a title defect in the 1984 deed; it did not include mother’s mother who was still living at the time the deed was executed. Mother then petitioned the probate court to adjudge her interest in the property, and in December 2005, the court determined that mother “possessed ... an existing enforceable title” and had the right to convey the property free of any claims. ¶ 4 In November 2005, mother petitioned the superior court to: (1) declare that mother is the sole legal and equitable owner of the property; (2) order daughter to comply with the sale of the property; (3) declare that mother is entitled to all proceeds from the sale of the property; and (4) enjoin daughter from making any claims against the proceeds of the sale. Daughter filed a motion for summary judgment. The superior court granted the motion, concluding that mother’s “voluntary act in titling the property in both her and her daughter’s names, as joint tenants with rights of survivorship” conclusively demonstrated her intent to make an inter vivos gift of a one-half interest in the property. This appeal followed. ¶ 5 We review a grant of summary judgment using the same standard as the trial court. Mellin v. Flood Brook Union Sch. Dist., 173 Vt. 202, 211, 790 A.2d 408, 417 (2001). “[S]ummary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.” Bacon v. Lascelles, 165 Vt. 214, 218, 678 A.2d 902, 905 (1996). In determining whether any genuine issue of material fact exists, we give the nonmoving party the benefit of all reasonable doubts and 534 inferences. Mellin, 173 Vt. at 211, 790 A.2d at 417. ¶ 6 In Vermont, there are two essential elements of an inter vivos gift: (1) donative intent and (2) delivery. Tyree v. Ortiz, 127 Vt. 177, 184-85, 243 A.2d 774, 778-79 (1968). Any interest in the property claimed by daughter in this case was created by mother’s act of gifting it to her, and therefore, the strength of mother’s and daughter’s respective interests in the property must be determined by an analysis of the facts supporting the establishment of these two elements. See Stephan v. Lynch, 136 Vt. 226, 229, 388 A.2d 376, 378 (1978) (finding that son failed to prove inter vivos gift despite title in joint tenancy); see also In re Schlacter’s Will, 312 N.Y.S.2d 851 (App. Div. 1970) (applying law of inter vivos gifts where mother conveyed one-half interest in property to son). ¶ 7 In defining donative intent in this context, courts have traditionally taken one of two approaches. The first approach treats donative intent as the intent to transfer legal title, established by the mere act of placing property into joint title without receiving consideration in return. 1 B. Turner, Equitable Distribution of Property § 5:44, at 483-85, 488-89 (3d ed. 2006) (discussing the “legal title approach” to donative intent and collecting cases from jurisdictions following this approach). The second approach, and the one favored by this Court, construes do-native intent as the intent to confer immediate, beneficial ownership in the property at issue such that the mere joint titling of property without consideration does not conclusively establish intent to gift the property. Id. (discussing “beneficial interest approach” to donative intent and collecting cases fi-om jurisdictions following this approach); see also, e.g., Stephan, 136 Vt. at 229-30, 388 A.2d at 378 (finding no donative intent where mother added son to deed as joint tenant for estate planning purposes only); Mizzi v. Mizzi, 2005 VT 120, ¶ 6, 179 Vt. 555, 889 A.2d 753 (mem.) (holding that properties jointly titled in wife’s name were not marital property where wife’s mother placed her name on the deeds only to avoid probate and retained “full authority to maintain, sell, lease or otherwise dispose of the properties as she saw fit”). The presence or absence of donative intent is ultimately an issue to be determined by the trier of fact. Wills v. Whitlock, 139 S.W.3d 643, 654 (Mo. Ct. App. 2004). ¶ 8 Here, by granting summary judgment for daughter, the trial court ignored mother’s attestation that she did not intend to convey a present beneficial interest to daughter by signing the 1984 deed, and that daughter was aware that the property was titled to her as joint tenant in an effort to avoid probate if mother still owned the house at the time of her death.1 The court relied on Foucher v. First Vermont Bank & Trust Co., a federal district court case, to determine that the mere act of titling the property in daughter’s name as a joint tenant was legally sufficient to establish the intent and delivery required for an inter vivos gift. 821 F. Supp. 916, 923 (D. Vt. 1993). In Foucher, the court held that “intent to create a present interest in the donee” can be presumed where the grantor “titlfes] the [property] in both names as joint tenants with right of survivorship.” Id. It went on to state 535 that “the law presumes acceptance when a gift is unaccompanied by any condition,” thereby fulfilling the element of delivery. Id. Here, by deciding that daughter was entitled to judgment as a matter of law, despite mother’s repeated claims on the record that she did not intend to make a present gift of the property to daughter, the trial court effectively created a conclusive presumption that title alone establishes an inter vivos gift. We disagree with the trial court’s position given our precedent on the issue. ¶ 9 The trial court was mistaken in its reliance on Foucher, whose facts are easily distinguished from the present case. In Foucher, a father and daughter jointly owned several investment accounts. Id. at 920. Before his death, the father fraudulently transferred the funds into a bank account solely in his name by forging his daughter’s signature. Id. at 920-22. After the father’s death, the daughter sued the bank for wrongful conversion of her assets held in joint tenancy. Id. at 919. In its defense, the bank — a third party to the joint tenancy — argued that the father had contributed the funds used to purchase the joint assets and that the daughter could not prove that her father manifested an intent to grant her a present interest. Id. at 923. Because the father was deceased and could not speak to his intent to gift the property, the court looked to the only evidence it had to determine his intent — the voluntary act of titling the accounts jointly in his daughter’s name. See id. ¶ 10 Here, in contrast, the dispute involves only the original parties to the joint tenancy, both of whom are still alive. Thus, our decision in Stephan is directly on point. In Stephan, a son convinced his mother to put her home in their joint names to avoid having to go through probate court in the event of her death. 136 Vt. at 227, 388 A.2d at 377. The son later moved into the home with his family, claiming that he had an equal interest in the property on the basis of his joint ownership. Id. We held that the law of inter vivos gifts applied and found that the son had no present interest in the home because his mother did not intend to gift the property to him and he was well aware of it. Id. at 230, 388 A.2d at 378. We pointed out then, as now, that the case involved “no intervening third party equities, nor ha[d] the situation been altered by the death of either of’ the parties — unlike many eases in which courts make inter vivos gift determinations involving real property. Id. at 229, 388 A.2d at 378. ¶ 11 The facts of this case are strikingly similar to those in Stephan. Here, mother claimed in her affidavit that she “did not intend to gift [her] home” to daughter by titling it in their joint names and that daughter at all times “understood that the house was always [mother’s] and [mother] could do anything [she] wanted with [the] home.” While daughter contested this allegation in her answer with a one-word denial, she filed no affidavit in support of her version of the facts, and therefore, the only facts on the record regarding mother’s intent when deeding the property were those provided by mother’s pleadings. Considering our precedent in Stephan, and giving mother the benefit of all reasonable doubts and inferences, we cannot say that there is “no genuine issue of material fact” or that judgment in favor of daughter is required as a matter of law. ¶ 12 Our holding today does nothing to undermine the general presumption that the act of titling property in another’s name establishes intent to convey a present interest in the property. Phillips v. Plastridge, 107 Vt. 267, 269-70, 179 A. 157, 158 (1935) (voluntary act of titling creates inference of donative intent and delivery); In re Estate of Adams, 155 Vt. 517, 521, 587 A.2d 958, 961 (1990) (decedent’s act of establishing accounts as absolute joint accounts created presumption 536 of intent to so establish them). In this limited situation, however, where the grantor contends that it was not her intention to gift the property by titling it in joint tenancy, summary judgment is inappropriate and the trial court must consider the grantor’s rebuttal evidence on the issue of intent. See Wills, 139 S.W.3d at 653-54 (summary judgment not appropriate where there was ample evidence that conveyance of property was not intended as inter vivos gift); see also Cole v. Cole, 920 S.W.2d 32, 35 (Ark. Ct. App. 1996) (joint title gift presumption rebutted by evidence that wife put separate property into joint title so husband would get property upon her death); Myers v. Weems, 876 P.2d 861, 864 (Or. Ct. App. 1994) (mother’s testimony that “she did not intend to give defendant a present interest in the property at the time that the deed was executed and recorded” rebutted the presumption that the property transfer was a gift). Whether that evidence is credible will ultimately be determined by the court. ¶ 13 Because we find that the trial court erred in granting summary judgment to daughter, we do not reach the issue of daughter’s precise interest in the property — if any — given the title defect at the time of the 1984 deed. Rather, we reverse and remand so that the trial court may decide these issues after consideration of the evidence presented by the parties. Reversed and remanded for further proceedings consistent with this opinion. Footnotes [1] There are several legal mechanisms that are typically used by property holders in estate planning to avoid the inconvenience of probate proceedings. One such mechanism is joint tenancy, which results in the automatic transfer of property upon death by operation of law. Another commonly used tool is the revocable trust, which was equally available to mother to legally effectuate her stated desire of avoiding probate in the event that she retained title to the property at the time of her death.