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ESTATE FRANZ A. KEIPER (10/29/82)

filed: October 29, 1982.

ESTATE OF FRANZ A. KEIPER, DECEASED. APPEAL OF: LLOYD H. MOLL, EXECUTOR OF THE ESTATE OF FRANZ A. KEIPER, DECEASED, AND LUISE G. MOLL


No. 2439 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Berks County, Orphan's Court Division, at No. 6-77-116.

COUNSEL

J. Brooke Aker, Norristown, for appellant.

Peter W. Schmehl, Reading, for appellee.

Cirillo, Montemuro and Hoffman, JJ.

Author: Hoffman

[ 308 Pa. Super. Page 85]

Appellants contend that the lower court erred in returning the assets of appellant Luise Moll's bank accounts to decedent's estate. Because the record supports the lower court's decree, we affirm.

Following his wife's illness and his own hospital stay for inoperable cancer, decedent opened a bank account giving power of attorney to his son-in-law, appellant Lloyd Moll. After his wife's death and his own rehospitalization, decedent signed a document prepared by Lloyd Moll authorizing that assets in decedent's accounts be put in the joint names of him and his daughter, appellant Luise Moll, "as he [Lloyd Moll] shall deem appropriate." Lloyd Moll then put decedent's accounts in the names of decedent and Luise Moll. Decedent subsequently executed a will leaving certain amounts to his three children. Finally, decedent took a down payment from the sale of his residence and placed it in a new account, without any power of attorney in Lloyd Moll. When the balance was paid, however, the down payment and the balance were deposited in one of the joint accounts, not in decedent's own account.*fn1 Following decedent's death, Lloyd Moll, as executor, filed an inventory of the estate's assets excluding certain items of personal property and the contents of the joint accounts. Appellees, decedent's other two children, objected to the account. After a hearing, the lower court found the personal property properly excludable inter vivos gifts*fn2 but determined that the joint accounts had been established as a result of a confidential relationship and thus must be returned to the estate. This appeal followed.

[ 308 Pa. Super. Page 86]

Appellants contend first that no confidential relationship existed between decedent and appellant Lloyd Moll

Although no precise formula has been devised to ascertain the existence of a confidential relationship, it has been said that such a relationship is not confined to a particular association of parties, but exists whenever one occupies toward another such a position of advisor or counselor as reasonably to inspire confidence that he will act in good faith for the other's interest.

Silver v. Silver, 421 Pa. 533, 537, 219 A.2d 659, 662 (1966). The relationship between decedent and Lloyd Moll, together with the circumstances surrounding the transactions, supports the lower court's finding of a confidential relationship. "No clearer indication of a confidential relationship could exist than giving another person the power of attorney over one's entire life savings." In re Estate of Ziel, 467 Pa. 531, 542, 359 A.2d 728, 734 (1976); see Foster v. Schmitt, 429 Pa. 102, 239 A.2d 471 (1968). Although the mere power of attorney may be insufficient to establish a confidential relationship when it is clear that the attorney served only at the instance and for the convenience of the decedent, In re Estate of Ziel, supra, we are satisfied that the surrounding circumstances clearly established Lloyd Moll's confidential relationship with decedent. See Foster v. Schmitt, supra. The lower court rejected appellants' uncorroborated and self-serving testimony that the transfers were made at the request of decedent and, in fact, found that Lloyd Moll was the motivating force behind the document authorizing him to add Luise Moll's name to the accounts. A "natural confidence," Silver v. Silver, supra, existed between decedent and Lloyd Moll, a trust officer at a local bank, and decedent could easily have assumed his affairs would be administered with his best interest in mind. In fact, decedent automatically turned to Lloyd Moll when arranging for the sale of his residence. Moreover, in the course of ten months, decedent lost his wife, was terminally ill, and was unable to care for himself. One of his physicians testified that he was getting mentally weaker and required care

[ 308 Pa. Super. Page 87]

    from others. N.T. May 27, 1981 at 175. Lloyd Moll occupied a position relative to decedent that inspired confidence in administering his business affairs. The evidence clearly supports the ...


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