Skip to main content



Delli Santi v. Mikolon

A-4477-06T3 (N.J. Super. App. Div. 2008) (Unpublished)

DEEDS; LIFE ESTATES — Where it can be proven that in return for a promise to take care of someone for life, and that all actions in that regard were taken, then the person being cared for’s promise to deed the property to his or her caretaker is enforceable and the person being cared will be treated only as having a life estate in the property.

A couple’s daughter and her husband sought to buy a house but the price was more than they could afford to pay. Her parents offered to help pay for the purchase. According to the daughter, “there was an oral agreement providing that in exchange for their contribution for purchase of the house [her parents] would live [with her and her husband] and be taken care of without having to contribute any further costs of the house.” The amount of the mortgage, the amount contributed by the daughter and her husband, and the amount contributed by the daughter’s parents were about equal. Title was placed in the names of the daughter and her husband, and in the name of her parents, as “joint tenants with right of survivorship and not as tenants in common. In addition, the daughter and her husband paid for upgrades in the home. “After the closing, the two families moved in and lived together with [the daughter and her husband] absorbing the costs and maintenance for the home.” About four years later, the father died and the mother continued to live in the home “with her daughter, son-in-law, and grandchildren.” From her social security payment, she paid a small monthly amount as “rent.” After the father died, the mother began spending more time with her son and her son’s family elsewhere. Eventually, she told her daughter and son-in-law that she preferred to live with her son “and wanted her personal things sent to his home. Her decision caused bad feelings between her children.”

The mother “consulted with a lawyer about drawing up a will to devise her interest in the [] property to [her son].” She was advised that since she owned the property in joint tenancy with her daughter and son-in-law, she would not be able to transfer her interest in the property to her son by will. Consequently, she executed a deed transferring her interest to her son. Neither her daughter or son-in-law were aware of the conveyance until the tax bill was sent to the woman’s son. The daughter and son-in-law then sued the mother and son to declare the “transfer void on grounds because of the agreement [the daughter and her parents].” Before the lower court, the daughter, the son-in-law, and a grandchild testified that “it was agreed and understood that after [the parents] died, the [home] would be theirs in exchange for their promise to take care of [the parents] for the rest of their lives.” The aged mother could not remember the agreement, “but she acknowledged that after she and [her husband] contributed to the purchase, there was an understanding and intention to live in the home until they died.”

The lower court held that the mother “could convey her interest, as a joint tenant with right of survivorship, to [her son] and therefore denied the contention of [the son-in-law and daughter] that the transaction was void. ... However, [the lower court] found there was an enforceable oral agreement that upon [the mother’s] death [the son-in-law and daughter] would acquire all right, title and interest to the home since they had upheld their part of the agreement of providing a home for [the parents] and caring for [the mother] for three decades with a willingness to continue until her death.” The lower court’s opinion said: “In that sense, specific performance of the agreement – the house would be theirs – is an appropriate remedy here.” [The daughter and son-in-law] bestowed care, protection, society and assistance to [the mother] for over 30 years. It would be impossible to value that service, so enforcing that promise at her death, by a declaration that full title shall vest in them is equitable.” The lower court also found it to be equitable for the son-in-law and daughter to pay the brother the amount that the parents had paid when the house was originally purchased.

The mother and her son appealed, but unsuccessfully. The Appellate Division ruled that the facts found by the lower court were “supported by adequate competent evidence in the record.” Therefore, it would not disturb the lower court’s ruling because that ruling was not “so wholly insupportable as to result in a denial of justice.” Further, it dismissed the argument that the agreement was violative of the statute of frauds finding that argument to be without merit “in light of the performance rendered by [the son-in-law and daughter] for more than thirty years.”


MEISLIK & MEISLIK
66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 • info@meislik.com