Tort/Negligence – Breach of Fiduciary Duty Claim – Power of Attorney – Dying Aunt – Banks & Banking – Joint Account with Right of Survivorship

Albert v. Cowart (Lawyers Weekly No. 12-07-0374, 22 pp.) (Donna S. Stroud, J.) Appealed from Henderson County Superior Court. (Mark E. Powell, J.) N.C. App. Full-text opinion.

Holding: Acting at the direction of his dying aunt and pursuant to her power of attorney, a nephew transferred approximately $450,000 into a joint account with right of survivorship that he shared with his aunt. Since the aunt was still alive at the time of the transfers, the transfers did not constitute gifts to the nephew.

We affirm the jury verdict in favor of the defendant-nephew and the trial court’s denial of the plaintiff-stepdaughter’s post-trial motions.

According to the wills of Doris and Frank King, Frank’s daughter would inherit their estate. However, multiple witnesses testified that Doris did not have a good relationship with her stepdaughter and did not want her to get any of Doris’ share of the Kings’ money.

The stepdaughter admitted that she did not know that Doris had cancer, and Doris told the defendant-nephew not to tell the stepdaughter that she was ill.

There was also testimony that Doris trusted defendant (Frank’s biological nephew). The nephew testified that he took no action on behalf of Doris without her knowledge and consent.

The evidence, when viewed in the light most favorable to the nephew, tended to show that, because Doris did not want her stepdaughter to get Doris’ share of the Kings’ money, Doris directed the nephew to move her share of the Kings’ assets into a joint account with right of survivorship that she shared with the nephew. The nephew did not move any of the money out of the account until after Doris’ death, when by operation of law by right of survivorship the funds in the account became the property of the nephew.

When viewed in the light most favorable to the nephew, the evidence shows that he did not make a gift to himself or breach his fiduciary duty as Doris and the nephew jointly opened the account, the deposits into the account were directed by Doris, and the funds in the account became the nephew’s property by operation of law after Doris’ death.

Affirmed.