Charlene Cochran, as executrix of the estate of Aldine Duke, deceased, appeals from the trial court’s grant of Timothy White’s motion to dismiss her petition for declaratory judgment. We conclude that the trial court correctly dismissed Cochran’s petition for declaratory judgment but improperly dismissed Cochran’s claim on behalf of the estate for damages sounding in tort. We therefore affirm the judgment in part and reverse in part. In her petition, Cochran alleged that Duke adopted her in 1971 and that she is the sole beneficiary of his estate. She alleged that during a period when Duke was suffering from Alzheimer’s disease, White, who was Duke’s cousin by marriage, fraudulently caused Duke to withdraw funds from Duke’s pension account and a checking account and deposited these funds into an account he held jointly with Duke. She also alleged that White deceived Duke into redirecting the direct deposit of his monthly Social Security and pension checks into a bank account White held jointly with Duke and continued these monthly deposits into the joint account over the course of three years, until Duke’s death.
After Duke died on June 4, 2003, the probate court issued letters testamentary to Cochran. Cochran alleged that she was unable to marshal the estate’s assets and sought a declaration of her rights as executrix. White answered and counterclaimed, alleging that he and Duke had been friends for a long time and that Cochran was the one who had defrauded Duke. He alleged that in the spring of 2000, Cochran withdrew a “substantial portion” of Duke’s funds from a savings account through the use of a power of attorney. White also alleged that Cochran unsuccessfully sought to withdraw a “substantial portion” of the funds on deposit in an account at the Lockheed Credit Union that Duke and White held jointly. After this unsuccessful attempt, Duke moved out of the residence he shared with Cochran and moved in with White, living there until his death. White asserted that he was the rightful sole owner of the funds sought by Cochran because before his death, Duke had given or transferred to him all interest in these accounts.
