In re ESTATE OF KURRELMEYER 895 A.2d 207 (2006) CASE BRIEF

In re ESTATE OF KURRELMEYER

895 A.2d 207 (2006)

NATURE OF THE CASE: Martina Kurrelmeyer appealed an order declaring void, as a matter of law, the revocable intervivos trust she created under her husband's durable power of attorney prior to his death.

FACTS: Louis Kurrelmeyer executed two durable general powers of attorney to appoint his wife, Martina Kurrelmeyer, and his daughter, Nancy Kurrelmeyer, as attorneys-in-fact. In December of 2000, Martina used the durable power of attorney and executed a document establishing the 'Louis H. Kurrelmeyer Living Trust,' with herself and Nancy as co-trustees. Martina then transferred certain real estate owned by her husband to herself and Nancy as co-trustees of the trust. Louis Kurrelmeyer was no longer competent. He died testate a year later, and Martina was appointed executrix of his estate. His last will and testament, executed in 1980, stated that as for the Clearwater property Martina would take a life estate in the property, with responsibility for taxes and upkeep, and upon her death the property would pass to his surviving children as joint tenants with rights of survivorship. The terms of the trust provide that Martina may occupy the home as long as she wishes and the trust is permitted to pay the expenses on the property should she fail to do so. The trustees would be required on Martina's unilateral request to sell the home, with the sale proceeds to be used either to purchase another home for Martina or, alternatively, to be added to the trust principal. The trust provides that all income from the trust property would be paid to Martina, as well as so much of the principal as the trustees deem necessary and proper for her support. Upon her death, the trust principal would be distributed to Louis's children, if they survived him, with any deceased child's share to be distributed to that child's descendants or held in trust until such descendants reached the age of twenty-five. The trust requires that there be at least one other trustee serving so long as Martina is serving as a co-trustee, and the co-trustees must act by mutual agreement. Louis Kurrelmeyer Jr., objected to the exclusion of the Clearwater property from the inventory completed by Martina. Jr. claimed that Martina exceeded her authority in creating the trust. Jr. asked the probate court to set aside the trust. The probate court upheld the trust, and the children appealed to the superior court. The superior court reversed the probate court's order. It concluded that the power of attorney did not authorize Martina to create a trust. The power was ambiguous on the trust issue, and narrowly construed the language to authorize only maintenance of, and additions to, trusts already existing when the power of attorney came into

being. Martina appealed.

ISSUE:

RULE OF LAW:

HOLDING AND DECISION:

LEGAL ANALYSIS:

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