Help with a life estate deed please

1. The owners of the house, grandma and grandpa both lack mental and contractual capacity.

2. Their daughter is the attorney-in-fact and has been self-dealing with those powers.

3. Since both parents were admitted into a nursing home the daughter decides to sale the house.

4. It has been her stated intention for years and claim that she would get the house.

5. She is an adult disable child with her own home; her husband has income for the couple.

6. She finds a buyer and prior to selling the house she attempts to use her agent privilege to sign the parents name to a lady

bird enhanced life estate deed naming either herself or the parents (we dont know yet) as grantees and herself as the

remainderman.

7. She creates the document and presents it at the closing. Her intent, we believe, is that if this works she will maintain the

house and rent it out, keeping the rent, until the death of the parents, when the house transfers to her.

8. The title company refused to acknowledge the document.

9. The house transaction was closed as a simple sale from grandma and grandpa to the new owner, both parents are still alive.

10. The proceeds check was made out to grandma and grandpa.

11. The daughter deposited the check into a joint account that was owned by both parents and herself.

12. Days later the money was withdrawn from that account and moved to her private account.

13. Her claim is that the house and money from the house sale is hers based on the idea that it was the intent of the parents to

give her the house upon their death as evidenced by the deed she herself created.

14. We are now attempting to reclaim the funds.

The problems with this scenario.

1. Both parents lacked capacity to create such a life estate and deed.

2. The daughter benefited from the transaction she created and signed for, which violates fiduciary ethics and duties.

3. Even if the life estate deed was and is valid these problems arise.

a. For there to be a transfer of the property of the life estate the grantors must die in order for the remainder to transfer.

b. Since they were still alive at the sale, they were the owners at the time of the sale.

c. Since they were the owners at the time of the sale, they are the owners of the proceeds of the sale. the life estate deed

evaporates because there is no longer any property to which the deed applies.

4. If the deed was a simple life estate deed then the parents and the remainderman must agree to sale the property. There are

three problems with this...

a. They lack mental and contractual capacity, documented by doctors, to make that decision.

b. The fact the the remainderman voluntarily sold the house and signed as agent shows intent and agreement to sell.

c. Since she agreed to sale, she does so knowing that the sale dissolves the life estate (since they are both alive) and that

there will be no property remaining. The proceeds are the property of the grantor.

5. If the deed was an enhanced lady bird deed then the grantors have authority to sale and retain the proceeds, again

dissolving the life estate.

6. If she claims the house was intended as a gift (which would have been inter vivos) it fails for these reasons.

a. The gift would have be in futuro and fails under the in praesenti immediacy requirement for gifts.

b. Regardless, they lacked capacity to bestow a gift. Donative intent is not there since, even by the daughter's plan, the gift

was intended to be given at a future time at their death, not in the immediate. Therefore the house cannot be a gift and

therefore the proceeds resulting from a sale cannot be a gift.

Now....here are my questions...

1. Her attempts were classic self-dealing weren't they?

2. She can't benefit from the self-created deal naming herself as remainderman, can she?

3. If we allege self-dealing and failure of fiduciary duty doesn't that shift the burden to the defendant to prove that these actions

were not self-dealing and raise her burden to clear and convincing from preponderance?

It is our estimation and allegation that she has simply stolen the proceeds.

1. Grandpa is now dead and the house proceeds should have been inherited by grandma.

2. The daughter still claims the proceeds belong to her and refused to relinquish.

And the biggest question of all...is my analysis correct? If not where am I going wrong, please.

Tex