No Competent Evidence Provided to Prove That Father Intended His Children to Benefit from His Insurance Proceeds

In Bunger v. Bunger (Apr. 10, 1992), Darke App. No. 1292, 1992 Ohio App, the decedent's two children argued that their father intended their aunt and uncle, the named beneficiaries, to hold life insurance proceeds totaling approximately $ 43,000, in a constructive trust, for their benefit, until they attained their majority. However, upon receipt of the life insurance proceeds, the uncle gave each child $ 8,000 and used the remainder of the proceeds to remodel his house. Id. In addition to suing their aunt and uncle, the children also sued the insurance company and the insurance company's agent claiming the agent knew the decedent intended to designate the aunt and uncle trustees of the life insurance proceeds and therefore, was negligent in not providing the decedent with a change in beneficiary form to effectuate his intent. Id. The defendants moved for summary judgment, which the trial court granted. Id. In opposing the motions for summary judgment, the children submitted the affidavit of their attorney, who stated that he had a conversation with the insurance company's agent and the agent informed him that the decedent indicated that his brother was to hold the monies for the benefit of his children. Id. at 7. Further, the affidavit of the attorney indicated the insurance agent discussed the issue of tax liability with him and the attorney also indicated that he informed the uncle ways to avoid tax liability while he held the monies for the children. Id. the children submitted their attorney's affidavit as proof that their uncle was aware of their father's desire that he hold the insurance proceeds for their benefit. Id. The court of appeals concluded this affidavit was insufficient to create a genuine issue of material fact. Specifically, the court of appeals held: "The affidavit, as it related to the (sic) what the decedent said to Agne insurance agent about his intent, and as to what Agne insurance agent said to Robert uncle about tax avoidance, is hearsay. Both these statements were made out of court and were clearly offered for their truth, i.e. that the decedent had manifested his intent that Robert uncle hold the insurance benefits for the benefit of his children, and that Robert Bunger uncle discussed tax avoidance as to those benefits, thus implying that the Bungers aunt and uncle were aware of this intent. We presume that the trial court properly ignored this evidence, having found as we do, that it was inadmissible hearsay evidence of the decedent's intent." Id. The children also submitted their deposition testimony in opposing the defendants' motion for summary judgment. the children testified, at their depositions, that the decedent told them he was going to talk to their uncle about puttingThere money in a trust fund for them. Id. This conversation allegedly occurred after the decedent made the aunt and uncle the new beneficiaries. Id. the court of appeals also struck this testimony as inadmissible hearsay. the court stated: "Like the affidavit, evidence of the conversation that the decedent allegedly had with his children following the change of beneficiary was inadmissible hearsay. the statement was made out of court and was offered as proof of the matter asserted, i.e., that the decedent intended that the Bungers aunt and uncle hold the insurance proceeds for the children's benefit. This evidence did not qualify as a hearsay exception pursuant to Evid.R. 804(B)(5), 'statement by a deceased', since the decedent's estate is not a party to this action." Id. at 9. The court of appeals affirmed the trial court's decision and found the children failed to introduce any competent evidence which could reasonably support their argument that their father intended them to benefit from the insurance proceeds. Id. Thus, the imposition of a constructive trust was unwarranted. Id.