## Facts

- Louis H. Kurrelmeyer executed durable general powers of attorney in 1996 while competent, naming his wife, Martina Kurrelmeyer, and his daughter, Nancy, as attorneys-in-fact.
- By December 2000, Louis had become incompetent.
- Acting under the power of attorney, Martina executed the “Louis H. Kurrelmeyer Living Trust,” naming herself and Nancy as co-trustees.
- Martina then transferred Louis’s Shelburne, Vermont real property (“Clearwater”) into the trust.
- Louis’s 1980 will granted Martina a life estate in Clearwater, with the remainder to his surviving children.
- After Louis died in 2001, Martina (as executrix) treated Clearwater as trust property outside the probate estate; Louis’s children objected, alleging lack of authority and improper self-dealing.

## Issues

1. Whether the durable power of attorney authorized the attorney-in-fact to create a revocable inter vivos trust and transfer the principal’s real estate into it.
2. Whether the power to create or modify a trust is inherently personal and therefore unavailable to an attorney-in-fact absent express authorization.
3. Whether the attorney-in-fact’s creation and funding of the trust constituted impermissible self-dealing or a breach of fiduciary duty, and whether that question was suitable for summary judgment.

## Decision

- The Vermont Supreme Court reversed the superior court’s summary judgment ruling that the trust was void as a matter of law.
- The Court held that the power of attorney’s broad language, including authority to execute trust instruments and convey real estate, encompassed creating the trust and transferring Clearwater into it.
- The Court rejected a categorical rule that trust creation is non-delegable as a matter of law.
- The Court remanded for further proceedings on whether Martina breached her fiduciary duty of loyalty, concluding the record did not permit resolution of the self-dealing claim on summary judgment.

## Legal Principles

- A power of attorney is construed as a whole to effectuate the principal’s intent, rather than through an unduly restrictive parsing of isolated clauses.
- Broad durable power of attorney language, coupled with specific authority to execute trust instruments and convey real estate, can authorize an attorney-in-fact to create and fund a revocable inter vivos trust.
- The existence of a prior will with different dispositive provisions does not, by itself, bar later nonprobate estate-planning transfers implemented under a valid power of attorney.
- Whether an agent’s trust-related transactions constitute impermissible self-dealing or a breach of loyalty is typically fact-dependent and may require a developed record, making summary judgment inappropriate when material facts remain disputed.

## Conclusion

The court held that the durable power of attorney authorized the attorney-in-fact to create and fund a revocable trust with the principal’s real estate, but remanded because the separate question—whether the agent’s conduct breached fiduciary duties through self-interested dealing—required factual findings not resolvable on summary judgment.


In re Estate of Kurrelmeyer, 179 Vt. 359, 895 A.2d 207 (Vt. 2006)