22.620 Inceptive Fraud (Constructive Trust)

22.620 Inceptive Fraud (Constructive Trust) You will recall that the plaintiff/defendant has claimed and is claiming an entitlement to the title to certain property, namely, _____________, not as an award of alimony, but rather because of an alleged inceptive fraud of the other party, and the defendant/plaintiff has denied and is denying any inceptive fraud and that defendant/plaintiff holds the title to the property and owns it legally and by right. This claim presents another issue for you to determine. Parks v. Parks, 240 Ga. 1 (1977) Hargrett v. Hargrett, 242 Ga. 725, 728 fn. 2 (1978); overruled on other grounds As I have instructed you, the plaintiff/defendant (both parties) is (are) seeking an award for alimony from the other party. (Alimony may or may not be awarded based upon the evidence presented as to entitlement, need, and ability to pay, and may be denied for adultery/desertion/misconduct.) In determining whether or not the plaintiff/defendant committed inceptive fraud, you are not to concern yourselves with the question of entitlement to alimony, financial need, or the ability to pay. Rather, you are to consider the following: If persons purchase property with their own funds but cause the title to (an interest in) the property to be placed in their spouse's name, and there is a delivery and acceptance of the (title to the) property, then it is presumed under the law to be a gift. However, that presumption may be rebutted if it is shown that inceptive fraud occurred. In order to show inceptive fraud, it must be established that the spouse receiving the (title to the) property made a promise to the purchasing spouse in order to induce such spouse to execute the deed (make the transfer, etc.), but the promise was fraudulently made, with no intent to comply. Hargrett v. Hargrett, 242 Ga. 725, 728 (1978); overruled on other grounds If you find that the plaintiff/defendant transferred (executed) the deed to certain property (or an interest in certain property) to his/her spouse, in return for and because of a promise made by that spouse, but that the promise was fraudulently made by defendant/plaintiff with the intention not to comply, then you may find that the defendant/plaintiff committed inceptive fraud in obtaining the title (property), (interest in property), and the deed (transfer) may be set aside and the property awarded to the spouse who originally purchased (owned) it. If you find that there was no inceptive fraud on the part of the defendant/plaintiff, then the defendant's/plaintiff's placement of the title in the name of his/her spouse would be considered a gift of (a __________ interest in) the property, and you should not find any inceptive fraud but should leave the title as it now is. (If alimony or child support is also in issue, include the following.) After you have decided this issue and determined which person will have actual ownership of the property, then you should consider the property as being in that person's estate upon your consideration of the issue(s) of alimony and/or child support. You should decide this issue on the alleged inceptive fraud before considering the issue(s) of alimony and/or child support.