Wife Had Authority to Transfer Property to Herself Under a Power of Attorney

North Dakota’s highest court rules that a wife had authority under a power of attorney to transfer property to herself because her husband had an obligation to support her, so the transfers were made for consideration and were not gifts. Estate of Lindvig (N.D., Nos. 20200135 and 20200136, Nov. 19, 2020).

Ralph Lindvig’s will gave his wife, Dorothy Lindvig, a life interest in his property and, on her death, transferred the property to his brothers. Ms. Lindvig suffered from mobility issues due to childhood polio. Mr. Lindvig also named Ms. Lindvig as his agent under a power of attorney. The power of attorney gave the agent the authority to transfer real estate for the purposes of estate planning, including transfers to the agent. It also provided authority to make gifts subject to the approval of a court in order to minimize taxes and maximize the estate for beneficiaries. Mr. Lindvig entered a nursing home. To help pay for his care, Ms. Lindvig sold portions of his property to his brother. She also transferred mineral rights and property to herself. Mr. Lindvig died, and Ms. Lindvig was the personal representative until her death a year later.

After Ms. Lindvig’s death, Mr. Lindvig’s estate filed a petition to set aside the transfer of the mineral rights and the property because they diminished the size of Mr. Lindvig’s estate and were not approved by a court. Ms. Lindvig’s estate argued that the transfers were made for consideration in the form of marital contributions and were not gifts. The court determined that the transfers were within Ms. Lindvig’s authority, and Mr. Lindvig’s estate appealed.

The North Dakota Supreme Court affirms, holding that the transfers were not gifts because Ms. Lindvig required support and Mr. Lindvig had an obligation to support her from his property. According to the court, “because the transfers in this case were not gifts, the power of attorney’s gifting provisions do not apply” and Ms. Lindvig “had authority to make the transfers under the power of attorney’s real estate transfer provision.”

For the full text of this decision, go to: https://www.ndcourts.gov/supreme-court/opinion/2020ND236

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