Ledbetter v. Ledbetter, [Ms. 1180200, Sept. 30, 2020] __ So. 3d __ (Ala. 2020). The Court (Parker, C.J.; Wise, Bryan, Mendheim, and Stewart, JJ., concur; Bolin, J., concurs in the result; Mitchell, J., dissents; and Sellers, J., recuses) reverses a summary judgment entered by the Elmore Circuit Court dismissing claims of Laurie Ann and Warren Ledbetter against their brother Russell Ledbetter as executor of the estate of their mother, Lois, alleging that Lois had created an oral trust benefitting her three children. The Court first explains that
Under The Alabama Uniform Trust Code, proponents of an oral trust must prove its creation and terms by clear and convincing evidence. See § 19-3B-407, Ala. Code 1975. “[W]hen the law imposes the higher burden of proof of clear and convincing evidence as to a particular claim or factual issue, the nonmovant must present evidence at the summary-judgment stage that would qualify as clear and convincing evidence if accepted and believed by the fact-finder.” Phillips v. Asplundh Tree Expert Co., 34 So. 3d 1260, 1266 (Ala. Civ. App. 2007); see also Ex parte McInish, 47 So. 3d 767, 776 (Ala. 2008) (“[S]ubstantial evidence in the context of a case in which the ultimate standard for a decision is clear and convincing evidence is evidence that a fact-finder reasonably could find to clearly and convincingly establish [the existence of] the fact sought to be proved. Thus, even if a trial judge reaches his or her own conclusion that the evidence presented does not clearly and convincingly establish [the subject fact], it is not for him or her to act upon that factual determination, but to determine instead whether the actual fact-finder could reasonably make a different finding based upon the same evidence.”).
Ms. **8-9 (some internal quotation marks omitted).
The Court holds that
... the unsigned trust document stated that it reflected an oral agreement between Lois and Russell. Attorney Spier’s notes from his meetings with Lois indicated that the Trust had been created on August 19, 1998, and was intended to benefit Laurie Ann, Warren, and Russell. Drawing all inferences in favor of Laurie Ann and Warren as the summary-judgment nonmovants, we conclude that a fact-finder could reasonably have found, by clear and convincing evidence, that an oral trust was created.
Ms. **10-11.
…. It is true that Spier’s handwritten notes from his March 1999 meeting with Lois referenced a trust being split among the children 40%-30%-30%. However, that evidence merely created an issue of fact as to Lois’s intent regarding the precise distribution. It was not the province of the trial court to resolve that issue of fact on a motion for a summary judgment. See Ex parte McInish, 47 So. 3d at 778 (“[W]eighing the evidence is solely a function of the trier of fact.”).
Ms. **11-12.