Beneficiary of two certificates of deposit (CDs) purchased by decedent before her death brought action against decedent’s attorney-in-fact to impose a constructive trust on the proceeds of the CDs, which, prior to decedent’s death, attorney-in-fact had transferred to an account to which she was a joint tenant with a right of survivorship.
The Circuit Court, Jasper County, Jon A. Dermott, J., entered summary judgment in favor of beneficiary. Attorney-in-fact appealed.
Reversed and Remanded. The Court of Appeals, Nancy Steffen Rahmeyer, P.J., held that a triable issue existed as to whether attorney-in-fact withdrew funds from principal’s certificates of deposit (CDs) for an appropriate purpose. The trial court erred in granting summary judgment on the basis that Appellant did not have the right to withdraw the funds from the CDs. An issue of fact remains whether the funds were withdrawn for the benefit of Ms. Walker. A genuine issue of material fact existed as to whether attorney-in-fact withdrew funds from principal’s certificates of deposit (CDs) for an appropriate purpose, such as to benefit principal. V.A.M.S. §§ 404.710(6), 461.035.
The court engaged in a two-part analysis. Keeping in mind that this was a summary judgment, and not a trial on the merits, the court found that the trial court erred in finding as a matter of law that Appellant did not have the right to withdraw the funds from the two CDs on the basis that there was no written authorization within the power of attorney to do so. The critical second question of the analysis-for what purpose were the funds withdrawn-was not ripe for a summary judgment.