Elder Law FAX The April 9, 2007, issue of Elder Law FAX, a free newsletter published every other Monday by the Elder Law Practice of Timothy L. Takacs.   Gift of Homestead from Aunt to Nephew Was Not the Product of Undue Influence Annerbell M. Brewer was a widow who had lived alone in her home in the City of Chesapeake, Virginia, after her husband's death in 1989. She had no children, but had twelve nieces and nephews. Two of these resided near her and helped her in various ways during her widowhood.   One was her niece, Mary B. Crawford, who handled her financial affairs from 1993 until Mrs. Brewer's death. Mrs. Crawford arranged for the services of caregivers for her aunt, ensured that her bills were paid, balanced her checkbooks and, in the last year of Mrs. Brewer's life, maintained a joint checking account with her.   Mrs. Brewer also had a close relationship with a nephew, Gilbert R. Bailey, who was a builder and developer. Mr. Bailey had been close to his aunt as a child. Mrs. Brewer and her husband had bought a house from Mr. Bailey's parents and later exchanged it for a piece of land Bailey owned, on which Bailey built a house for the Brewers in 1963. Mrs. Brewer still lived in that house at the time of her death, on October 15, 1997.   That property is the subject of this lawsuit. Bailey kept the repairs up on the house and Mrs. Brewer became dependent upon him for transportation in her later years.   In 1989, Mrs. Brewer executed her last will in which, after two legacies, she left the residue of her property to her husband and, if he should not survive her, to her 12 named nieces and nephews in equal shares.   At age 82, on June 14, 1997, Mrs. Brewer went into a nursing home. She stayed for two months and then left, spending the last two months of her life partly in her own home and partly in the home of Mr. Bailey and his wife Ann.   During those last two months, Mrs. Brewer visited the Department of Motor Vehicles and had the title of her automobile transferred to joint ownership with herself and Mr. Bailey. She told him later she wanted to do the same with her home.   Mr. Bailey consulted his attorney, who prepared a deed of gift, conveying Mrs. Brewer's property to Gilbert Bailey, but reserving a life estate in Mrs. Brewer.   Mr. Bailey picked up the deed from the attorney's office and took it to his home. On September 4, 1997, Mrs. Brewer came into the house after a drive with Ann Bailey and asked him whether he had the deed. He showed it to her, read it in full to her, and asked her if it was what she wanted.   She replied that it was "exactly what she wanted" and signed it in the presence of a notary public who was employed by the Baileys and was working in the office they maintained in the basement of their home. Mr. Bailey subsequently had the deed recorded.   After Mrs. Brewer's death, Linda Dee Turnbow qualified as executrix under Mrs. Brewer's will and filed suit against Gilbert Bailey, alleging undue influence, among other things, and asking that the deed be set aside.   After a five-day trial, the trial judge issued an opinion finding that a confidential relationship between Mr. Bailey and Mrs. Brewer existed, thereby giving rise to a presumption of undue influence, which Bailey had failed to rebut, in the procurement of the deed.   Mr. Bailey appealed the case to the Virginia Supreme Court, which examined the evidence and issue of whether a confidential relationship existed between Mr. Bailey and Mrs. Brewer.   Under the law in Virginia, as in other states, where one person stands in a relationship of special confidence towards another, so as to acquire an influence over him, he cannot accept from such person a personal benefit without exposing himself to the risk of having it set aside as being the product of undue influence. Where a confidential relationship is found, the burden then shifts to the party who obtained the benefit to disprove that he acquired the benefit unduly.   The trial judge's ruling indicated, however, that a confidential relationship existed merely due to the close family relation between Mr. Bailey and Mrs. Brewer. This relationship in itself does not give rise to one of "confidence," said the Virginia Supreme Court, thereby creating the presumption of undue influence, unless one party provides financial advice or assistance to the other or there is an agency relationship in which one party is bound to act for another - in other words, if Gilbert Bailey had been attorney-in-fact for Annerbell Brewer under a durable power of attorney.   Under this standard, therefore, the Virginia Supreme Court reversed the trial judge. Mr. Bailey was not attorney-in-fact for Mrs. Brewer. The only evidence of financial advice or assistance to Mrs. Brewer by a family member was that given by Mary Crawford, not by Gilbert Bailey.   Bailey v. Turnbow, January 12, 2007