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Trusts & Estates – Wills – Real Property – Parol Evidence – Statute of Frauds

According to plaintiff, her childless and widowed brother willed a condominium to her and a house to his sister-in-law. After learning that his sister-in-law preferred the condo, the decedent decided the women could switch, and he deeded the condo to his sister-in-law; however, he never changed his will or deeded the house to plaintiff. Although the decedent may well have intended for plaintiff to inherit his house, he never transferred it to her in a paper writing; accordingly, the sister-in-law is entitled to both the house and the condo.

We affirm summary judgment for the defendant-sister-in-law.

Defendant’s title to the condo and title to the house are based on written instruments signed by the decedent. Plaintiff’s title to the house, according to her complaint, is based entirely on parol evidence.

Our Statute of Frauds requires that “[a]ll contracts to sell or convey any lands, tenements or hereditaments, or any interest in or concerning them . . . shall be void unless said contract, or some memorandum or note thereof, be put in writing and signed by the party to be charged therewith, or by some other person by him thereto lawfully authorized.” G.S § 22-2. An oral contract to convey or to devise real property is void by reason of the Statute of Frauds.

Plaintiff also alleges unjust enrichment, but this claim fails because all the evidence showed that plaintiff did not confer any benefit on defendant.

Plaintiff’s claim for a constructive trust fails because evidence did not show that defendant acquired the house through fraud, breach of duty, or other wrongdoing. Rather, she received it through a legacy in the decedent’s 2012 will. When the decedent executed the deed conveying the condo to defendant in 2016, he still owned the house. The trial court correctly determined that there was no constructive trust imposed through the 2012 will as a matter of law.

Finally, plaintiff argues that the 2016 deed should be reformed based on mutual mistake. However, plaintiff does not allege that the decedent had intended to include in the 2016 deed a stipulation conveying the house to plaintiff and that such stipulation was left out by mistake. Indeed, only defendant is listed as a grantee. Plaintiff only alleges that the decedent was somehow mistaken that executing the 2016 deed was all he needed to do to carry out the entirety of the purported agreement among the parties.

The “mistake” might have been that the decedent thought his 2012 will already left the house to plaintiff, or the mistake might have been that the decedent never got around to amending his 2012 will. Maybe the decedent made no mistake at all but simply changed his mind and decided to leave both the house and the condo to defendant. In any case, plaintiff has failed to create an issue regarding her claim based on mutual mistake.


Barrett v. Coston (Lawyers Weekly No. 011-279-18, 9 pp.) (Christopher Dillon, J.) Appealed from Carteret County Superior Court (Benjamin Alford, J.) Russell Alexander and Wesley Collins for plaintiff; Ross Hardeman for defendant. N.C. App.


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