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Estate of Draper v. Bank of America

July 27, 2007

ESTATE OF ETHEL F. DRAPER, DECEASED, APPELLEE,
v.
BANK OF AMERICA, N.A., AS TRUSTEE OF THE ETHEL F. DRAPER IRREVOCABLE VOLUNTARY TRUST AGREEMENT DATED APRIL 8, 1982, APPELLEE/CROSS-APPELLEE,
FIRST CHRISTIAN CHURCH OF OLATHE, KANSAS, APPELLANT, JANIS M. WALESKI MURPHY AND MARY H. MOELLER, APPELLEES/CROSS-APPELLANTS,
UMB BANK, N.A., AMERICAN CANCER SOCIETY HEARTLAND DIV., OLATHE MEDICAL CTR., APPELLEES.



Appeal from Johnson District Court; JAMES F. VANO, judge.

SYLLABUS BY THE COURT

1. When a motion to dismiss raises an issue concerning the legal sufficiency of a claim, the question must be decided from the facts pled in the petition. Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question is whether, in the light most favorable to plaintiff, and with every doubt resolved in plaintiff's favor, the petition states a valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.

2. Constructive fraud requires a confidential relationship and a breach of a duty imposed by the relationship.

3. A confidential relationship refers to any relationship of blood, business, friendship, or association in which one of the parties reposes special trust and confidence in the other who is in a position to have and exercise influence over the first party. The mere relationship between parent and child does not raise a presumption of a confidential and fiduciary relationship.

4. A confidential relationship can be based on an agreement between the owner of property and another who will distribute the owner's property in a specified manner upon the owner's death.

5. A confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. Where a confidential relationship has not been proved or even asserted, there can be no constructive trust.

6. The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.

7. If the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction. Unambiguous contracts must be enforced according to their plain, general, and common meaning in order to ensure the intentions of the parties are enforced.

8. Kansas courts imply a duty of good faith and fair dealing in every contract. Parties shall not intentionally and purposely do anything to prevent the other party from carrying out his or her part of the agreement, or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract.

9. Interpretation of a statute is a question of law, and this court has de novo authority to review the trial court's decision.

10. K.S.A. 59-2239 requires all creditors to make demands against an estate within 4 months from the date of first publication of the notice under K.S.A. 59-2236.

The opinion of the court was delivered by: Marquardt, J.

Reversed.

Before MALONE, P.J., GREEN and MARQUARDT, JJ.

First Christian Church of Olathe, Kansas (First Christian), Janis M. Waleski Murphy, and Mary Helen Moeller appeal the trial court's grant of summary judgment to the Estate of Ethel F. Draper (Estate). We reverse.

In April 1967, Clark Draper and Ethel Catlin executed an antenuptial agreement in contemplation of their marriage. Clark had three children from an earlier marriage; Ethel had no children. The antenuptial agreement stated that both Clark and Ethel had "substantial property and property rights" and if Ethel survived Clark, Ethel was required to maintain a valid will devising to each of Clark's sons not less than one-fourth of ...


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