Opinion
No. LLI-CV-06-5001046-S
August 17, 2009
MEMORANDUM OF DECISION
By warranty deed dated March 21, 2002, Jane Wiederhold conveyed certain real property to the defendant, Edward McAteer for the consideration of natural love and affection. This is an action to set aside that deed. The plaintiff administrator of Jane Wiederhold's estate claims that the grantor lacked the mental capacity to convey the deed and that there was no delivery and acceptance.
The undisputed material facts demonstrate that Jane Weiderhold was the aunt of Edward McAteer. Edward's Uncle John (Jane's husband and Edward's mother's brother) died in 1998. The Wiederholds, who had no children, and the McAteers enjoyed a close relationship. After John's death, Edward saw Jane about once a month. He was her only relative on the East Coast. His mother, sister, brother-in-law, and their daughter live in St. Louis, Mo. The evidence disclosed that the living relatives of Jane other than Edward consisted only of his mother, his sister, brother-in-law, and their daughter.
The relationship between Edward and his Aunt Jane deepened after Uncle John's death. She gave him gifts, including an old car and a check for $200,000. Jane was a wealthy woman who owned property in Barkhamstead, Connecticut. That property consisted of 3.41 acres with a single-family residence situated thereon known as 12 Beaver Brook Road. In 2002, there were tenants on the property. From time to time, McAteer mentioned to Jane that he would like to purchase the property from her.
Discussion 1. Mental Capacity
"In order to make a gift, the donor must possess sufficient mental capacity. The test of the donor's mental capacity is whether, at the time of the transaction, the donor had the ability to understand the nature and effect of his or her act." 38 Am.Jur.2d, Gifts, § 13.
The plaintiff claims that Jane Wiederhold lacked the mental capacity to form the intent to bestow the gift of Beaverbrook Road on McAteer. § 8.1 of the Restatement 3rd Property provides that a person must have mental capacity in order to make a donative transfer. To have mental capacity to make an irrevocable inter vivos gift, the donor must be capable of understanding the effect that the gift may have on the future financial security of the donor and of anyone who may be dependent on the donor. Id.; also see Restatement 3rd, Trusts § 11, comment c. "The donative intent of a grantor is an issue of fact. The party contesting the validity of a donative transfer has the burden of persuasion in establishing that the donor lacked mental capacity to make the transfer."
The plaintiff supports his claim that Jane Weiderhold lacked the mental capacity to form the intent to convey the deed to the Beaver Brook property to McAteer with the fact that Jo-Anne Centurelly, a registered nurse with the Foothills VNA, who saw Jane once a month from 2001 until 2008 became concerned about Jane's decline by November 2001. At that time, Jane was unable to give her address. Moreover, she signed the deed with an "x" because she was unable to sign her name. Ms. Centurelly petitioned for a conservator for Jane Wiederhold in August 2002, just five months after the deed was signed.
The housekeeper, Barbara Conklin, had been housecleaning for Jane Wiederhold since February 1999. She noticed a change in Jane's mental functioning before the deed was signed. Jane had difficulty saying words she wanted to say. She had difficulty working appliances. She also told Barbara Conklin that she believed that some man was hiding her shoes and jewelry. On the other hand, Jane Wiederhold was able to articulate her suspicions about her attorney to her niece's husband during her 2002 Easter visit with them in St. Louis. Regarding that visit, Frank Stokes testified that Jane participated in conversations and appeared to be enjoying herself. Mr. Stokes said that he knew that Jane obviously loved Edward and wanted him to have the house.
Peter Sivaslian, Jane Wiederhold's attorney was subsequently convicted of two counts of first degree larceny when it was discovered that he had stolen millions of dollars from Jane Wiederhold.
Peter Sivaslian testified that he questioned Jane Wiederhold thoroughly concerning the ramifications of deeding the property to her nephew. He believed that she was well aware of what she was doing, and that deeding the property to Edward McAteer was what she wanted to do. Barbara Conklin was a witness to the signing, and she believed that Jane understood what was going on when she signed the deed conveying the Beaver Brook property to McAteer.
"A rebuttable presumption of donative intent exists when the grantee is the natural object of the grantor's bounty." Farrah v. Farrah, 187 Conn. 495, 500, 446 A.2d 1075 (1982). Although generally natural objects of a grantor's bounty are the children or spouse of the grantor, the circumstances existing in this case reasonably support an assertion that Edward McAteer was indeed a natural object of Jane Wiederhold's bounty. Moreover, courts have held that impairment of the mind incident to old age does not necessarily indicate so great a deterioration of capacity as would render an individual unable to understand the nature and effect of a transaction purported to be a gift. See 38 Am.Jur., Gifts, § 13.
Based on all the facts presented, the court finds that Jane Wiederhold had the mental capacity to form the intent to give the Beaver Brook property to Edward McAteer.
2. Delivery
Plaintiff alleges in the second count that there was no delivery of the inter vivos gift of the property by deed prior to October 21, 2002, when the Probate Court found that Jane Wiederhold was incapable of managing her affairs and caring for herself by reason of senile dementia of the Alzheimer's type. The plaintiff claims that, because the actual deed was not turned over to McAteer prior to February 13, 2004 when it was recorded in the Land Records, there was no delivery.
"The term `gift,' which is more appropriately applied to personal property, is the transfer of property without consideration. The two requisites of a valid gift are a delivery of the possession of the property to the donee, and an intent that the title thereto shall pass immediately to him." Guinan's Appeal from Probate, 70 Conn. 342, 347, 39 A. 482 (1898). "To make a valid gift inter vivos, the donor must part with control of the property which is the subject of the gift with an intent that title shall pass immediately and irrevocably to the donee." (Citations omitted.) Wasniewski v. Quick and Reilly, Inc., 292 Conn. 98, 103, 971 A.2d 8 (2009). "It is not necessary that there should be a manual delivery of the thing given, nor that it should be made to the donee in person; nor is there any particular form or mode in which the transfer must be made or by which the intention of the donor must be expressed." Main's Appeal from Probate, 73 Conn. 638, 640, 48 A. 965 (1901). "Where actual delivery has not occurred, the resolution of the issue of whether a donor has made a constructive delivery depends on the circumstances of each case." Fontaine v. Colt's Mfg. Co., 74 Conn.App. 730, 734, 814 A.2d 433 (2003).
"A gift of real property ordinarily must be made by a deed conveying the donor's interest in the property . . ." 38 Am.Jur.2d § 44. "The delivery of a deed with intent by the grantor to pass title is essential to a valid conveyance." Lomartira v. Lomartira, 159 Conn. 558, 561, 271 A.2d 91 (1970). "The party who asserts non-delivery (of a deed) has the burden of proving it by clear and convincing evidence." 159 Conn at 562. On the other hand, the burden of proving delivery of a gift is on the donee. "The burden of proving intent and delivery rests upon the party claiming the gift . . . Delivery of possession is the foundation of a transfer; without delivery there can be no transfer." City National Bank v. Morrissey, 97 Conn. 480, 483, 117 A. 493 (1922). Because the deed is only the mechanism by which the gift was bestowed, the burden of proof should rest with the party claiming the gift.
In order to constitute a delivery, not only must the donor part with possession of the property, but he also must relinquish control of it. See Kriedel v. Krampitz, 137 Conn. 532, 534, 79 A.2d 181 (1951); Burbank v. Stevens, 104 Conn. 17, 22, 131 A. 742 (1926). "The intention of the parties is an essential and controlling element of delivery of a deed, and such intention may be inferred from the circumstances. Intention has been called the `essence of delivery,' and not only is it often the determining factor among other facts and circumstances, but it is the crucial test where constructive delivery is relied upon." 23 Am.Jur.2d § 105.
The evidence is clear that, after the deed had been signed, Attorney Sivaslian informed McAteer that Jane Wiederhold had made him the gift of the Beaver Brook property. McAteer asked him not to record the deed because he was in the throes of a divorce in New York. Also subsequent to the signing of the deed, Frank Stokes became a co-conservator of Jane's affairs with Peter Sivaslian. He discussed with Jane the fact that she had transferred the house to Edward. He said that the house had been trashed under Sivaslian's management. He believed that payment of the expenses of evicting the tenants and having the house rehabilitated was in compliance with Jane's wishes. It was Edward McAteer who directed what work was to be done on the property. Jane Wiederhold had indicated to Sivaslian that she wanted to take care of getting the tenants evicted and the house was rehabilitated for McAteer. She was not involved in the details. McAteer eventually called Silvaslian and told him that he could record the deed because his divorce was final. After that, the deed was recorded.
The plaintiff's evidence does not support his contention that there was no delivery. It was Edward McAteer who controlled the property and what was to be done with it after Jane Wiederhold conveyed it to him. The fact that she continued to pay the expenses for a time appears to have been additional gift to him. Moreover, the evidence is that Jane Wiederhold clearly intended that Edward McAteer have the Beaver Brook Road property when she signed the deed. The defendant has sustained his burden of proving delivery of the gift of the Beaver Brook Road property.
3. Acceptance
"As a general rule, acceptance by the donee is an essential element of either an inter vivos gift or a gift causa mortis." 38 Am.Jur.2d § 33.
At the time Jane Wiederhold signed the deed, Edward McAteer was going through a divorce. He did not want the deed recorded. That fact, however, does not negate his acceptance of the gift. "The exercise by the donee of dominion over the property which is the subject of a gift, or an assertion of a right to the property by the donee, generally will constitute an acceptance." 38 Am.Jur.2d § 33. The evidence demonstrates that Edward McAteer unequivocally accepted the gift. He simply did not want it recorded because he wanted to keep the fact of the gift from his wife and the court in New York.
Conclusion
Plaintiff suggests that the court may not find in favor of the defendant because, by doing so, it will assist the defendant in perpetrating a fraud on the New York Supreme Court by allowing the defendant to own the property for purposes of this case when he represented to the New York court that he did not own it for purposes of his divorce case. The Court disagrees. It is not the function of this court to punish the defendant for the fraud he may have committed in another jurisdiction; that is the function of the court in New York. The obligation of this court is to enter judgment based on the law as applied to the evidence in this case. Accordingly, judgment enters for the defendant.