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Home Owner Wins Return Of Property From Step–Children

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APRIL 17, 2000 VOLUME 7, NUMBER 42

In order to avoid the probate process, or for income or property tax purposes, property owners often add children, spouses or others to the title on their homes. Sometimes those transfers turn out badly.

When Jean and Samuel Owens married in 1970, they each had children from first marriages. Jean also had something else–she owned her own home in Walhalla, South Carolina, and she had been able to pay off the mortgage after her first husband’s death. Samuel Owens moved into her house and they lived together there for twenty-five years.

For several years after they married, Samuel repeatedly asked Jean to put his name on the house. In 1983 Jean finally agreed, but only to get a tax benefit that was available to if he had an interest in the home. At the same time Samuel agreed to sign a new will leaving his interest in the house to Jean’s children, so that his own daughters would not receive any interest in the house.

A decade later, Samuel apparently decided that he wanted to renege on his agreement with Jean. Without telling her, he signed deeds transferring his interest in her house and another property they couple had bought to his two daughters.

The same day Samuel also signed a new will. His will left everything to Jean. If she died before him, it left everything to all of their children.

Samuel told the lawyer who prepared the documents not to mention them to Jean, but to send the deeds directly to one of his daughters. Along with the deeds he included specific instructions not to record them until after Samuel’s death.

Less than a year later Samuel died. The daughter who had received the deeds promptly recorded them; that was the first inkling that Jean had about the transfer of the properties.

Jean brought a lawsuit to recover the properties. She argued that the alleged transfer from Samuel to his daughters was invalid because of the instruction not to record the deeds until after his death. She also maintained that Samuel never really had any interest in the home at all, that she added his name to the deed only to get a tax benefit and only after he agreed to leave the house to her children. Jean herself died before the courts resolved her challenge.

The South Carolina Court of Appeals agreed with Jean. The judges noted that Samuel continued to act as if there had been no transfer of the properties even after delivery of the deed. He and Jean had even signed a sliver of one of the properties over to a neighbor to settle a boundary dispute, which tended to show that he thought he still owned his interest outright. The transfers were set aside, though at a substantial legal cost and not until years after Jean’s death. Because of Samuel’s will, all the property passed to Jean’s estate. Estate of Owens v. Mariner, April 3, 2000.

Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.