Smith v. Wachovia Bank, N.A.

The main opinion concludes that the lack of consideration to the wife forecloses consideration of the claim against Fletcher Mitchell Smith, personal representative of her estate, as an ex contractu claim. Consideration is not always necessary for a claim to be considered contractual in nature. This is such a case.

First, I am of the view that it is the law, not the bargaining and exchanges between the parties, that made the wife’s obligations under the power of attorney contractual in nature. That is, the law simply treats the wife’s undertaking as contractual in nature; it imputed to her, by…