Summary
considering the source of the funds and whether the surviving co-tenant made any deposits in deciding whether the plaintiff rebutted the presumption of joint tenancy
Summary of this case from Merrill Lynch, Pierce Fenner & Smith Inc. v. SohmerOpinion
October 8, 1992
Appeal from the Surrogate's Court, New York County (Renee Roth, S.).
We agree with the Surrogate that the checking account jointly held by the decedent and respondent was a "convenience account", set up in the event of illness or death, that passed to the decedent's estate (see, Matter of Kleinberg v Heller, 38 N.Y.2d 836, 840; Brezinski v Brezinski, 94 A.D.2d 969). Petitioner overcame the statutory presumption of a joint tenancy with a sole right of ownership in the surviving cotenant (Banking Law § 675) with proof that the decedent and respondent, father and daughter, opened the account on March 8, 1989 with funds in the amount of $18,728.76 belonging entirely to the decedent; that on May 4, 1989, after the decedent had suffered severe chest pains and was hospitalized, the account was substantially augmented by the deposit of a $203,000 check representing the proceeds of the sale of the decedent's securities made by the decedent's brother at respondent's behest pursuant to a power of attorney the decedent gave to respondent on April 26, 1989 while he was hospitalized; that on May 9, 1989, approximately 48 hours after her father's death, respondent transferred $208,000 from the joint checking account into her own personal account; that when petitioner, respondent's brother, arrived in New York on May 7, 1989, the date of the decedent's death, respondent gave him a $50,000 check issued from the account in question, on which payment was stopped on May 9, 1989 when respondent was advised that petitioner was attempting to deny her access to the decedent's safe deposit box; and that respondent was given only a small bequest under the last of decedent's six wills, dated November 4, 1988.
Given this showing, the burden clearly shifted to respondent to show that her father understood the implications of setting up a joint account and intended thereby to make a gift to her of the funds therein constituting the bulk of his estate (Matter of Camarda, 63 A.D.2d 837, 838-839).
We have reviewed respondent's remaining claims and find them to be without merit.
Concur — Carro, J.P., Wallach, Ross and Asch, JJ.