## Facts

- George L. Fournier delivered $400,000 in cash (two boxes of $200,000) to friends Josephat and Yvette Madore in 1998 or 1999.
- Fournier instructed the Madores to keep the money secret during his lifetime and, after his death, deliver it to his sister, Faustina Fogarty, because she “needed it more” than his other sister, Juanita Flanigan.
- Fournier later told Flanigan and Flanigan’s daughter that a friend was holding money for him.
- Fournier made a separate $100,000 gift to Fogarty a few years after placing the $400,000 with the Madores.
- Fournier died in February 2005; Fogarty was appointed personal representative in informal probate.
- After Fournier’s death, the Madores delivered the $400,000 to Fogarty in a private meeting.
- Fogarty petitioned for declaratory judgment seeking recognition of an oral inter vivos trust naming her as sole beneficiary.
- The probate court denied the petition, ruled the $400,000 was an estate asset distributable under the will, and ordered delivery of the money to Fogarty only as personal representative.
- Fogarty appealed.

## Issues

1. Whether Fournier’s transfer of $400,000 to the Madores, with instructions to deliver it to Fogarty upon his death, created a valid oral inter vivos trust under Maine law.
2. Whether the existence and terms of the alleged oral trust were established by clear and convincing evidence.
3. Whether the probate court’s contrary finding that the $400,000 was part of the probate estate was clearly erroneous.

## Decision

- The Supreme Judicial Court of Maine vacated the probate court’s judgment and remanded for entry of judgment for Fogarty.
- The court held that the evidence established an oral inter vivos trust of the $400,000 for Fogarty’s sole benefit.
- The court concluded Fournier intended Fogarty to take the funds in her individual capacity, not as personal representative.
- The court determined the probate court’s treatment of the money as an estate asset was clearly erroneous given the weight of the evidence.

## Legal Principles

- A trust may be created by transferring property during the settlor’s lifetime to another person to hold as trustee, if statutory trust-creation elements are satisfied, including intent, a definite beneficiary, and trustee duties.
- An oral trust is valid, but its creation and terms must be proved by clear and convincing evidence.
- Trustee duties can consist of safeguarding property during the settlor’s life and delivering it to a named beneficiary upon the settlor’s death.
- Appellate courts defer to probate fact-finding unless clearly erroneous, but may reverse when findings conflict with overwhelming, largely uncontradicted evidence of settlor intent.
- Property held in a valid inter vivos trust is not part of the probate estate for distribution under the decedent’s will.

## Conclusion

The court enforced an oral inter vivos trust where a settlor transferred cash to third parties with instructions to keep it and deliver it to a named beneficiary at death, holding the trust was proved by clear and convincing evidence and the funds were not probate estate assets.


In re Estate of Fournier, 2006 ME 89, 902 A.2d 852 (Me. 2006)