New York Probate and Estate Administration Lawyer Blog
The Facts of the Case:
On 18 October 2007, a decedent died and is survived by his daughter-one and his granddaughters, A and B, the children of predeceased daughter-two, as his sole distributes. The decedent’s wife had predeceased him in September 2003. After the death of the decedent, the petitioner instituted an SCPA 2103 discovery proceeding. A New York Probate Lawyer said the petitioner is granddaughter B, who resides in Florida and to whom limited letters of administration (for estate administration purposes in an estate litigation) issued for the sole purpose of prosecuting the discovery proceeding and the respondent is daughter-one, who resides in Selden, Suffolk County. The property, subject of the proceeding, is a parcel of real property in Massapequa Park, Nassau County, and three bank accounts. Apparently, the real property was conveyed by the decedent to the respondent by deed dated 26 August 2004 and recorded 7 September 2004. The deed purported to convey all of the decedent’s right, title and interest in the property, except that it reserved a life estate in the decedent. At the time of decedent’s death, the bank accounts were held either jointly between decedent and respondent or solely by respondent.
In the SCPA 2103 proceeding, petitioner alleges that respondent was in a confidential relationship with the decedent and used that relationship to exert undue influence upon the decedent to convey the real property and change the title and/or beneficiary designations on the subject accounts. In opposition, respondent denies petitioner’s allegations and contends that all the transactions reflect the exercise of the decedent’s own free will. The respondent now moves for a summary judgment and for an order dismissing the petition and canceling a notice of pendency filed against the decedent’s former residence.
The Ruling of the Court:
As the rules provide, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish the existence of material issues of fact which require a trial of the action. The court’s function on a motion for summary judgment is issue finding rather than issue determination. The papers submitted in connection with a motion for summary judgment are always viewed in the light most favorable to the non-moving party. If there is any doubt as to the existence of a triable issue, the motion must be denied. However, mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient to overcome a motion for summary judgment.
On the Deed of Conveyance:
Respondent has presented evidences including the testimony of the lawyer who prepared the subject deed as well as a will, which has not yet been presented for probate or will contest, and a power of attorney. In this regard, the court finds that respondent has clearly made out a prima facie case that the subject deed was a valid conveyance of the property to respondent.
Here, petitioner does not allege that there was no delivery or acceptance by the respondent; her only argument is that the decedent lacked the donative intent to effect a valid conveyance and/or that the conveyance is the result of undue influence upon the decedent or the result of misrepresentations made by the respondent to the effect that the conveyance would be for the convenience of the decedent and was merely for Medicaid and estate tax planning. Petitioner offered nothing but her own testimony that decedent seemed forgetful and frail at or about the time of the execution of the deed. Moreover, upon questioning by respondent’s attorney she could not point to a single incident which would support a conclusion that the respondent had exercised undue influence on the decedent or had made any promise or representation to him about holding the property merely for his convenience. The only evidence casting any doubt on the bona fides of the subject deed is the deposition testimony of petitioner’s sister about an incident that allegedly occurred at her parents’ home after her mother’s funeral. She alleges that she overheard respondent say to someone on the telephone something to the effect that now that her mother had passed away they can get daughter-two’s name off the house. In this case, the court finds that even if this testimony were to be believed, it does not rebut the overwhelming testimony from the lawyer that the conveyance of the property to respondent was decedent’s overriding intention. Furthermore, the record does not support petitioner’s contention that decedent and respondent were in a confidential relationship. Respondent was decedent’s closest relative and the only one in any proximity to decedent. Although decedent was elderly and respondent did some of the banking transactions and had arranged for his meals, there is no evidence that decedent relied on respondent for his daily needs. He continued to pay some of his own bills and never had home health aides or nurses and continued to live alone for approximately three years after the deed conveyance. In sum, the court finds that the record as a whole establishes that decedent was competent and acted on his own volition; that even if some level of dependence was established, it is counterbalanced by the closeness of the familial relationship and the circumstances of the case.
In sum, a Nassau County Probate Lawyer said that the that branch of the motion seeking summary judgment on the validity of the deed and canceling the notice of pendency is granted.
On the Bank Accounts:
A Staten Island Probate Lawyer said that there are three bank accounts in dispute, two with bank-one and one with bank-two. The bank-one savings account is titled in the names of decedent and respondent daughter-one payable to either or the survivor in trust for daughter-two. Here, the signature card used to open the account indicates that the funds in the account are payable to either or the survivor of two joint tenants. Clearly, pursuant to the Banking Law, the presumption that the parties intended to create a true joint bank account with rights of survivorship applies. The burden is then on the opposing party to prove fraud, undue influence or lack of capacity, or that the account was opened merely for convenience and not with the intent of conferring a present beneficial interest. However, petitioner has offered no such proof. Thus, the court finds that the signature card was sufficient to establish respondent’s prima facie case, and respondent is entitled to the balance in the account on the date of decedent’s death.
The bank-one checking account, on the other hand, is payable to the decedent and daughter-one. Thus, there is no survivorship language and the presumption of Banking Law does not obtain. In this case, the presumption is that the account is held by the two co-tenants as tenants in common. The presumption may be rebutted by proof that the parties intended to create a true joint account with right of survivorship. Here, there is no indication of the decedent’s intent when the account was opened in February 2004. While it may be that after daughter-two’s death he intended respondent to succeed to the funds in the joint checking account upon his own death, it is his intention at the time the account was opened which is controlling. Thus, there being no evidence of intent, the motion with regard to the bank-one checking account is denied.
On the bank-two trust account, the account had been titled in the names of the decedent in trust for daughter-two, and daughter-one. On 5 August 2004, the title of the account was changed to daughter-one in trust for her daughter. This now constitutes as a gift of the entire account to respondent. The instrument used to change the title on the account was signed by both respondent and decedent before a notary public. The transaction occurred six months after daughter-two’s death and at or about the time of the execution of the subject deed and the decedent’s last will and testament, both of which clearly evince the decedent’s intention to leave the bulk of his estate to respondent, his only living child. The decedent’s death did not eventuate for another three years after the transaction, and clearly was not a deathbed transfer or a gift after his death. Clearly, the respondent has established all the elements of valid gift. Thus, she is entitled to summary judgment, and that the transfer of the bank-two trust account was a valid lifetime gift.
In sum, the respondent’s motion is granted in part and denied in part; the motion with regard to the deed, bank-one savings account and bank-two trust account is granted; and the motion with regard to the bank-one checking account is denied.
Disputes among family members usually arise when properties are given or received by reason of succession or death of a loved one. In this regard, the intention of the decedent must be established by clear and convincing evidence. Thus, for the best Suffolk County Estate Litigation Lawyers, contact us at Stephen Bilkis & Associates. We have free consultation services. Call us and confer with our Suffolk County Estate Administration Attorneys, Suffolk County Probate Attorneys, and the like.