justice carter justice o'brian the number of issues in this case and i'm going to turn to sort of talk about some of the policy procedures overall before getting into the different ultimately what we're trying to do in this case is and what the judge and the courts are trying to do is get to the mindset of the deceit what did the deceiving intent we have more specifically you know what was his motivation what were his intent in doing these things and these are all uniquely generally inappropriate for summary judgment what we have in this situation so in any event that's far different than when you're dealing with a child and parent relationship when you're dealing with that type of situation we're not dealing with a business relationship we're dealing with a way ship that has had decades to occur you know situations where you know why good or not some parents have favorites some parents have favorites for reasons you know there are issues about when it comes to disposing  luckily you know so in some of these presumptions that have been talked about and i think of i think it's de georgene some of the statements are made they come from a particular point of view without dealing you you sort of sweep away everything else that main been a motivating factor in this case now there are there also are differences and i suppose i sort of slice that question up perhaps  because we have the joint account for example was that done in the context of the five ensure relationship we could have happened independently you look at certain things about the independence of it being set up differentiates it though is if if the person with the power of attorney just uses that to create something on his own versus the principle also there's no evidence that it was used and so therefore i would say in this situation the power of attorney is not in use now i would probably say that that doesn't necessarily it could be both in certain circumstances i think of it but there's also one of the other questions with regards to it sometimes we use presumptions sort of shown again in evidence other times we use them for policy and so she's in the case show that there is until influence there has to be something more in the question here is was there evidence about pretty sure of the will in that it was independent and yes there once property the way that you will in trust period you know it it actually is sufficient facts to defeat the summary judgment i think on the creation of the presumption and then also to act attacking the presumption itself to burst the presumption yet again i think you have to take that into the the family context and the cases that we talked about certainly franciscans sisters very similar that the decision no i would never say that's not a decision that really it's a step there's a decision i think there was a decision to move to a larger house a different house that was more is to back up you did have both you genius i believe sign off on the sale documents the transfer and the dean and remus also but then but but again your genius was very much involved in where those funds went to was aware of what was going on the other thing and point out this is not a situation where  in our motion for summary judgment and he did not take issue with any of the facts none at all the reason that presumptions apply here and in most cases is because my clients knew nothing about what happened until after their father was gone and then they had to learn and find out through discovery and so on and what they found out was that you know and we say in our brief this is not to be dramatic i they took notice it's it's it's in the undisputed facts my client lima pointed out that there were adorns that occurred in recess home that were a bit of a surprise you know there was new landscap rivers went down to florida and he and his father read that he should come back and live with remus and he he did resist ever period states and again either remiss is going to pick and choose what the facts are worsening heart condition rivers was bathing in addressing him changed his diapers when it was necessary this is this was not somebody who was a strong forceful you know life for and his father eugene's was paying his way the one hundred and thirty thousand dollars you know you would think if you're going to pay one hundred and thirty thousand dollars towards there's nothing more of me you give to your son there's nothing wrong  which is a case of his side in the face of the the will and trust of challenge it's required that there be a full and frank disclosure of all material facts did involve using the markets or instead of his house and there was a checking account that was not in the the miller court determined that the power of attorney did not need to be used didn't have proof of the level one conduct or was showing that he had manipulated or coerced his father into doing these things in my response was it's presumed it is presumed because sure he knew what my father was and that is undisputed and so this is different from the anthony case which talks about we have with this is to a will that says you know you shouldn't you shouldn't never met with a lawyer didn't reach for things with the lawyer in our case we have a completely different situation where remus had the whole thing out in reverse followed up with it and made sure that it happened one things this time you judge  truck or is why would her covers for cross myth was never he never asked about anything else in regard to the geniuses escape he never asked him what this state of his financial affairs  if the decision been based on is a trier of fact making that rather than summary judgment but those are all over the the facts may be not disputed the the result of those facts in terms of there could perhaps be a distinction on that but again then you have to get around the idea of what happens with joining house and don't even tempt and in especially within the family situation and i'm not saying that it tried it absent there's an absence of presumptions it necessarily falls one way or with the other but the presumptions are very dangerous i think in situations like this when you are dealing with you know families great again elderly or even you know disabled i mean because those are the same type of situations situations that arise you want to be in the situation come into effect here we're sort of dealing with binary issues once something's proven that you automatically flip one way i think that is inappropriate when you're dealing with family relationships in situations like you might have a caretaker you might have a neighbor who might have an attorney those are those are the things that i think you'd least you should be considering in terms of not knowing what the presumption is what it takes to run it raise the presumption but exactly what standard  in the clear and convincing klein which is the rd district case really gets to the presumption showing there's an issue of fact with regard to raising the presumption franciscan sensor franciscan sisters really gets to show me there's an issue of fact