In 2004, Ms. Willis signed a will, stating that if she conveyed her residence to her son, Eddie, before her death, that it was her wish that if he sold the property, he divide the proceeds with his brother, Anthony. Subsequently, Ms. Willis transferred a remainder interest in the the residence to Eddie, but did not include any reversionary interest. Eddie then died intestate and Ms. Willis sought to reform the Deed to prevent the property from passing to Eddie’s children, arguing that the Deed to Eddie was a unilateral mistake.
Following Nelson v. Harris, 32 N.C. App. 375, 232 S.E.2d 298 (1977), the Court of Appeals held that to survive a motion for a directed verdict, Ms. Willis had "to produce more than a scintilla of evidence that the Deed was not supported by consideration and that the Deed failed to express her actual intent in executing the Deed due to her unilateral mistake." The majority opinion found that not only was there no evidence of such intent, but that Ms. Willis had, in fact received thorough legal advise regarding this transfer.
The dissent, however, focused on the finding by the trial court that there had been adequate consideration for the transfer and not whether there had been a unilateral mistake. The dissent would have instead found that Ms. Willis’ own testimony established a scintilla of evidence as to her intent that this transfer be a gift and as to whether it was made in consideration/compensation to her son.
The answer to this bar exam question is that Ms. Willis should have granted Eddie the life estate and retained the remainder interest, with a will bequeathing it in equal parts to her sons or their estates. There then remains the question whether Ms. Willis (now her estate, since she has passed) has a cause of action against the attorney that drafted the Deed.