Estate of Salwey v. Klein

1. Connie Klein appeals from a judgment in favor of the estate of Lucille A. Salwey, by Chippewa County Family Services, Inc., her special administrator (hereafter, the estate). The judgment requires Klein to pay the estate $90,707 plus costs and imposes a constructive trust on Klein's home to ensure payment of the funds. The trial court determined that Salwey's gift of $80,000 and other payments to Klein were made as the result of Klein's undue influence and that Klein violated her fiduciary duty to Salwey. On appeal, Klein argues that the court's determinations are erroneous. We affirm the judgment.

Statement of Facts

2. The background facts are undisputed. In January 1995, Salwey, a seventy-seven-year-old widow, hired attorney Robert Hagness to assist her in contesting a guardianship proceeding. On February 1, after successfully defending the proceeding, Salwey executed a new durable power of attorney, changing her agent from her brother to Klein, a forty-seven-year-old friend. At the time, Salwey was living in a nursing home.

3. In July, Salwey and Klein decided to purchase a house for Klein. According to Klein, it was their intention that Salwey would be able to visit and spend time at the home. They selected a house, and Salwey gave the owner $1,000 earnest money. On August 8, Salwey signed a gift affidavit in support of Klein's application for a mortgage, indicating that she would give Klein $80,000. Klein purchased the home on August 16, using the $80,000 gift and a $50,000 mortgage. Only Klein's name appears on the deed.

4. Throughout 1995 and early 1996, Klein performed financial transactions for Salwey. In many instances, Klein made purchases and then reimbursed herself using Salwey's checking account.

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full text of the Court's opinion.

¶26. Klein argues that Salwey voluntarily gave Klein the money to purchase her home, as well as funds to make several mortgage payments, because Salwey wanted to help Klein. She notes that Salwey, a widow, had no children and had minimal contact with her other family members. Accordingly, Klein contends it would be natural for Salwey to give her a gift. The trial court was free to adopt Klein's position, but instead resolved conflicts in the testimony in the estate's favor. See Fuller, 159 Wis. 2d at 332. When more than one reasonable inference can be drawn, the reviewing court must accept the inference drawn by the trier of fact. Bank of Sun Prairie v. Opstein, 86 Wis. 2d 669, 676, 273 N.W.2d 279 (1979). Because there is credible evidence to support the court's findings, we will not disturb them.

By the Court. Judgment affirmed.

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C.L.