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Factual Background:

Decedent executed a power of attorney, giving her nephew’s wife, Anna, and another individual (who is not a party to the appeal) authority to make certain decisions on Decedent’s behalf, including the power to establish accounts and make inter vivos gifts of property to lineal descendants, including her attorneys-in-fact.  Pursuant to this power of attorney, the attorneys-in-fact opened two bank accounts, which they co-owned with Decedent.  Both of the accounts included rights of survivorship.  Decedent died intestate, and at the time of her death these accounts totaled $129,134.46.  The other attorney-in-fact told Anna that she did not want the money and that Anna could keep all of the money in the accounts.  Anna then withdrew the money and closed the accounts, and she proceeded to dispose of the entire balance.

Decedent’s sister was appointed Personal Representative of the estate and filed a Petition for Discovery of Assets against Anna and her husband, in which four of Decedent’s siblings joined as plaintiffs.  The petition asked the court to determine the title and right of possession to the proceeds of the two accounts and ultimately asked the court to order the proceeds to be transferred from Anna to Decedent’s estate.   A jury trial was held, but a mistrial was declared.  The matter was reset for trial.  On the morning the second trial was to commence, the plaintiffs filed a “Motion for Judgment as a Matter of Law and/or Motion for Judgment on the Pleadings at the Close of All Evidence.”  The court then sent the jury home, and it held a hearing regarding the motion.  No evidence was submitted.

Ripley County Circuit Court, J. Clarkson, Held:

The circuit court granted the motion and entered judgment in Plaintiffs’ favor and against Anna and her husband in the amount of $118,134.46.  Anna and her husband appealed.

Court of Appeals, J. Francis Jr., Held:

Reversed and remanded.  First, the nature of the motion on which the trial court ruled is unclear, but it appears that the court considered the motion as a motion for summary judgment since it looked at matters outside the pleadings, though there was no compliance with Rule 74.04.

Appellants assert that the trial court erred in sustaining the motion because section 362.471.1 created a presumption that the money in the joint bank accounts became the sole property of Anna and the other attorney-in-fact upon Decedent’s death and that Respondents not only failed to present any evidence to rebut this presumption, there was an issue of fact presented as to Decedent’s intent in the Power of Attorney describing inter vivos gifts.  There was no evidence before the court when the motion was presented and considered.  Nevertheless, the motion itself concedes some issues of fact.  In the motion, the Respondents acknowledge that the intent of the Power of Attorney was at issue.  The court also remarked that it was taking the Power of Attorney to be ambiguous.  The trial court then took it upon itself to determine the Decedent’s intent with respect to any gift to Anna.  The Decedent’s intent is a question of fact to be determined by the trier of fact.  Therefore, it was error for the court to enter judgment when the pleadings and the Respondents’ own motion indicated there were issues of fact.