N.C.P.I.—Civil 865.70

"Was (identify property) purchased with funds held by (name

alleged trustee) as a fiduciary for (name alleged beneficiary)?"

You will note that in this issue I have used the word "trust". A

trust is a legal relationship between persons. A trust exists when one

person acquires property under circumstances where he incurs a legal

duty to handle that property in a particular way so as to benefit another

person. A "resulting trust" is a legal relationship which arises when all of

the circumstances show that the person acquiring the property is not to

benefit from it.

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by clear, strong and convincing evidence,3

four things:

First, that a fiduciary relationship existed between (name alleged

fiduciary) and (name alleged beneficiary). A fiduciary is a person in

whom another person has placed special faith, confidence and trust.

Because of the trust and confidence placed in him by another person, a

fiduciary is required to act honestly, in good faith and in the best

interests of that person. 4 A fiduciary relationship may exist in a variety

of circumstances. Any time one person places special faith, confidence

and trust in another person to represent his best interests, a fiduciary

relationship exists.5 It is not necessary that there be a technical or legal

relationship.6

(Where a preemptory instruction is justified, continue this element

by stating: By law, a fiduciary relationship exists between [attorneys and

their clients] [guardians and their wards] [principals and their agents]

[partners] [(describe other fiduciary relationship)].7 (I instruct you that a

fiduciary relationship existed between (name alleged fiduciary) and

(name alleged beneficiary) as a matter of law.)

Second, that (name alleged fiduciary) acquired (identify property) in

[his own name] [in the name of a [person] [entity] controlled by him]. [A

person "acquires" personal property when [a contract to purchase] [option

to purchase] has been executed which is enforceable against the seller]

[it is delivered to him]8 [the documents of title are executed and

delivered to him].]9 [A person "acquires" real property when [a contract

to purchase] [option to purchase] has been executed which he can

enforce against the seller] [a deed of conveyance is executed and

delivered to him].]

Third, that the purchase price of this property was paid with

[money] [describe other consideration used to purchase] which (name

alleged fiduciary) held in his fiduciary capacity for (name alleged

beneficiary). [Money] [describe other property used to purchase] [is]

[are] held in a fiduciary capacity when [it is] [they are] obtained as a

result of a fiduciary relationship. In other words, [money] [describe other

property used to purchase] [is] [are] held in a fiduciary capacity when the

[money] [describe other property used to purchase] is obtained because

of a special faith, confidence and trust placed in one person by another.

And Fourth, that the conduct of (name alleged fiduciary) has

deprived (name alleged beneficiary) of the beneficial interest to which he

is entitled in (identify property).10

Finally, as to the (state number) issue on which the plaintiff has

the burden of proof, if you find by clear, strong and convincing evidence

that (identify property) was purchased with funds held by (name alleged

fiduciary) as a fiduciary for (name alleged beneficiary), then it would be

your duty to answer this issue "Yes" in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the defendant.