Estate of Suzanne C. Pruitt - Page 16




                                       - 16 -                                         
          less than full and adequate consideration if, at the time of                
          decedent’s death, the enjoyment of the property was subject to              
          the decedent’s power to alter, amend, revoke, or terminate.  See            
          sec. 2038(a)(1).  Respondent asserts that decedent had the power            
          to revoke the gifts made by Ms. Thompson to decedent’s three                
          daughters and their husbands on December 30, 1993, and January              
          18, 1994 (the gifts), because the powers of attorney did not                
          authorize Ms. Thompson to make gifts of decedent’s real property;           
          therefore, the gifts must be included in decedent’s gross estate.           
          Petitioner contends that the powers of attorney authorized Ms.              
          Thompson to make the gifts and that, therefore, the gifts are not           
          revocable.                                                                  
               The legal effect of gifts made pursuant to a power of                  
          attorney is determined according to State law.  See Morgan v.               
          Commissioner, 309 U.S. 78 (1940).  Oregon has not established,              
          either through case law or statute, a bright-line rule flatly               
          prohibiting gifts by attorneys-in-fact to themselves or to third            
          parties absent express written authorization in a power of                  
          attorney.12  Consequently, we must examine Oregon law, and decide           


               12Numerous jurisdictions have adopted the rule that “an                
          agent lacks authority to make a gift of the principal’s property            
          unless that authority is expressly given by the language of the             
          power of attorney.”  Kunewa v. Joshua, 924 P.2d 559, 565 (Haw.              
          Ct. App. 1996); see also Townsend v. United States, 889 F. Supp.            
          369, 371-372 (D. Neb. 1995); Aiello v. Clark, 680 P.2d 1162, 1166           
          (Alaska 1984); In re Estate of Crabtree, 550 N.W.2d 168, 170                
          (Iowa 1996); Whitford v. Gaskill, 480 S.E.2d 690, 692 (N.C.                 
                                                             (continued...)           





Page:  Previous  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  Next

Last modified: May 25, 2011