State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: June 11, 2015 519934
________________________________
In the Matter of the Estate of
STANLEY J. FARRAR, Deceased.
LEIGHANN PETTY,
Appellant; MEMORANDUM AND ORDER
MARTIN S. FARRAR, as Executor
of the Estate of STANLEY J.
FARRAR, Deceased,
Respondent.
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Calendar Date: April 23, 2015
Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.
__________
McPhillips, Fitzgerald & Cullum, LLP, Glens Falls (Edward
P. Fitzgerald of counsel), for appellant.
John Winn, Granville, for respondent.
__________
Egan Jr., J.
Appeal from an order of the Surrogate's Court of Washington
County (McKeighan, S.), entered June 24, 2014, which dismissed
petitioner's application, in a proceeding pursuant to SCPA 1809,
to determine the validity of petitioner's claim against
decedent's estate.
In 1980, Stanley J. Farrar (hereinafter decedent) married
Esther Farrar (hereinafter Farrar), each of whom apparently had
children from prior relationships. Farrar died in November 2003
and decedent died in March 2013. Although decedent's will is not
included in the record on appeal, respondent (decedent's son and
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the executor of decedent's estate) testified that decedent's
will, among other things, bequeathed $1,000 to each of three
named individuals, one of whom was petitioner (Farrar's great-
granddaughter), who was residing with decedent at the time of his
death.1 The remainder of decedent's estate, according to
respondent, was to be divided equally among decedent's 11
children and stepchildren.2
At the time of his death, decedent was a resident of Middle
Granville in Washington County and, for a number of years prior
thereto, had maintained a money market account with Citizens
Bank. In January 2013, decedent – accompanied by petitioner –
went to the Citizens Bank branch located in West Pawlet, Vermont
and met with bank representative Donna Daigle to discuss
obtaining a better rate of interest for his account. To that
end, Daigle opened a new account for decedent using the proceeds
from the prior money market account. According to Daigle,
decedent's daughter, Angela McGinnis, was listed on the previous
account with decedent; the signature card for the new money
market account bore the names and signatures of decedent,
McGinnis and petitioner.
Following decedent's death, McGinnis withdrew the balance
1
Petitioner, who apparently also was permitted under the
terms of decedent's will to remain in his house until it was
sold, vacated decedent's residence two weeks after his death.
Respondent testified that when he arrived at decedent's residence
following petitioner's departure, he found the windows "open,"
the furnace "cranked up," the corresponding fuel tanks "empty"
and the personal property "[g]one." Petitioner admitted that she
removed various items of personal property from the premises –
claiming that she had respondent's permission to do so – and
conceded that she refused to return such property until presented
with a court order to that effect.
2
In addition to the $1,000 testamentary bequest,
petitioner also received $20,000 in proceeds from a life
insurance policy maintained by decedent and naming her as the
beneficiary.
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of the Citizens money market account – roughly $85,300 – and
presented respondent with a bank check made payable to decedent's
estate.3 Petitioner thereafter filed a notice of claim pursuant
to SCPA 1803 demanding payment of one half of the value of the
Citizens money market account as of the date of withdrawal.
Respondent rejected petitioner's claim, prompting petitioner to
commence this proceeding to determine the validity thereof.
Surrogate's Court dismissed petitioner's application, finding,
among other things, that the Citizens account was merely a
convenience account, that petitioner was not a joint tenant with
a right of survivorship and that, therefore, petitioner was not
entitled to one half of the claimed proceeds. This appeal by
petitioner ensued.
We affirm. Petitioner initially contends that Surrogate's
Court erred in applying New York law to this matter. As the
Court of Appeals has instructed, "[t]he first step in any case
presenting a potential choice of law issue is to determine
whether there is an actual conflict between the laws of the
jurisdictions involved" (Matter of Allstate Ins. Co. [Stolarz–New
Jersey Mfrs. Ins. Co.], 81 NY2d 219, 223 [1993]; see Bonded
Waterproofing Servs., Inc. v Anderson-Bernard Agency, Inc., 86
AD3d 527, 528 [2011]). Upon reviewing the relevant statutes (see
Banking Law § 675; Vt Stat Ann tit 8, § 14204) and applicable
case law (see e.g. Matter of Corcoran, 63 AD3d 93 [2009]; In re
Estate of Adams, 155 Vt 517, 587 A2d 958 [1990]), we are not
persuaded that an actual conflict does in fact exist here.
Rather, to our analysis, the law in New York and Vermont relative
to survivorship rights is substantially the same. Accordingly,
and for the reasons that follow, we are of the view that
petitioner does not prevail in either jurisdiction.4
3
The check, which was in the amount of $85,950.36,
included additional proceeds from another Citizens account that,
according to respondent, was owned by decedent and to which
McGinnis was a signatory.
4
Were we to determine that an actual conflict was present,
we would find that New York law should apply as – on balance –
New York is "the state with the most significant relationship
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Banking Law § 675 (a) provides, in relevant part, that,
"[w]hen a deposit of cash . . . has been made . . . in the name
of [the] depositor . . . and another person and in form to be
paid or delivered to either, or the survivor of them, such
deposit . . . and any additions thereto made, by either of such
persons, . . . shall become the property of such persons as joint
tenants and the same, together with all additions and accruals
thereon, . . . may be paid or delivered to either during the
lifetime of both or to the survivor after the death of one of
them." Further, Banking Law § 675 (b) provides that "[t]he
making of such deposit . . . in such form shall, in the absence
of fraud or undue influence, be prima facie evidence, in any
action or proceeding to which the . . . surviving depositor
. . . is a party, of the intention of both depositors . . . to
create a joint tenancy and to vest title to such deposit . . .,
and additions and accruals thereon, in such survivor." Thus,
"[w]here an account has been formed in compliance with the
statute, it is presumed, absent a showing of fraud or undue
influence, that the depositors intended to create a joint tenancy
with rights of survivorship" (Matter of Stalter, 270 AD2d 594,
595 [2000], lv denied 95 NY2d 760 [2000]). That said, the
statutory presumption embodied in Banking Law § 675 (b) will not
be triggered unless the signature card for the account in
question specifically references rights of survivorship (see
Matter of Grancaric, 91 AD3d 1104, 1105 [2012]; Matter of
Corcoran, 63 AD3d at 95; Matter of Johnson, 7 AD3d 959, 959-960
[2004], lv denied 3 NY3d 606 [2004]; Matter of Stalter, 270 AD2d
at 595; Matter of Coon, 148 AD2d 906, 907-908 [1989]; Matter of
Timoshevich, 133 AD2d 1011, 1012 [1987]; Matter of Burns, 126
AD2d 809, 811 [1987]). Assuming the statutory presumption has
been invoked, the burden then shifts to the party challenging the
survivorship rights "to establish – by clear and convincing
evidence – fraud, undue influence, lack of capacity or, as
[respondent] asserts here, that the account[] [was] only opened
as a matter of convenience and [was] never intended to be [a]
joint account[]" (Matter of Grancaric, 91 AD3d at 1105; see
Matter of Corcoran, 63 AD3d at 96; Matter of Stalter, 270 AD2d at
with the particular issue in conflict" (Indosuez Intl. Fin. v
National Reserve Bank, 98 NY2d 238, 245 [2002]).
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595-596).
Here, the signature card for the Citizens money market
account contains no survivorship language. Accordingly, under
prevailing case law, petitioner simply is not entitled to the
presumption afforded by Banking Law § 675 (b) (see Matter of
Grancaric, 91 AD3d at 1106; Matter of Corcoran, 63 AD3d at 97;
Matter of Stalter, 270 AD2d at 597; Matter of Timoshevich, 133
AD2d at 1012). Moreover, even if we were to afford petitioner
the benefit of the statutory presumption, we nonetheless would
find that respondent came forward with clear and convincing
evidence to rebut that presumption.5
5
Nothing in the record suggests that petitioner received
account statements for the Citizens account or, prior to
decedent's death, had significant involvement in decedent's
banking or financial affairs. Although petitioner did make two
withdrawals from the subject account shortly before decedent's
death, she testified that a portion of these funds was used to
purchase a reclining chair for decedent's residence. Notably,
the record reveals that decedent had a history of placing other
individuals' names upon his bank accounts so that someone would
be able to do his banking for him if he was unable to do so.
Further, respondent testified that the proceeds from the Citizens
account comprised the lion's share of decedent's estate, which,
according to respondent, was to be divided evenly among
decedent's 11 surviving children and stepchildren. Accordingly,
affording petitioner a one-half interest in the proceeds of the
Citizens account would not only greatly reduce the assets of the
estate but, further, would result in petitioner receiving funds
in an amount incommensurate with what she otherwise would have
received through decedent's estate (see Matter of Johnson, 7 AD3d
at 960). Finally, we cannot help but note that McGinnis, whose
name had appeared on a number of decedent's accounts over the
years, including the Citizens account at issue, apparently did
not believe that she possessed a survivorship interest in the
Citizens account – as evidenced by the fact that, following
decedent's death, she closed out that account and promptly
tendered the resulting proceeds to respondent to be included in
decedent's estate. Under these circumstances, we would conclude
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Nor are we persuaded that petitioner made out a valid
common-law claim for entitlement to the subject proceeds.
Although Daigle indeed testified that decedent indicated that all
three individuals – decedent, McGinnis and petitioner – were to
be owners on the Citizens account, given decedent's history of
establishing convenience accounts, Daigle's testimony on this
point, "[a]t best, . . . invites conjecture as to decedent's
intent" in opening the account (Matter of Timoshevich, 133 AD2d
at 1012) – particularly when viewed in the context of decedent's
overall estate planning scheme. For all of these reasons, we
find that petitioner has not established a valid claim against
decedent's estate and, therefore, Surrogate's Court properly
dismissed her application.
Finally, and as alluded to previously, petitioner would not
prevail even if we were to apply Vermont law. Vermont's
statutory counterpart to Banking Law § 675 (b) provides, in
relevant part, that "[t]he recital of the words 'payable to
either or to the survivor' or words of like effect in the order
creating such account and signed by the person or persons who
furnish the funds for such deposit shall be conclusive evidence,
as between the payees and their legal representatives, of the
creation of an absolute joint account" (Vt Stat Ann tit 8,
§ 14204 [b]). No such language appears upon the signature card
used to open the Citizens account, which is the only document in
the record bearing the signatures of decedent, petitioner and
McGinnis. Thus, in our view, petitioner would not be entitled to
the benefit of Vermont's statutory presumption. Additionally, as
the record does not otherwise contain clear and convincing
evidence that decedent intended to establish a joint account with
a right of survivorship (see In re Estate of Adams, 155 Vt at
520-521, 587 A2d at 960-961), petitioner cannot make out a
common-law claim under Vermont law. Petitioner's remaining
arguments, to the extent not specifically addressed, have been
examined and found to be lacking in merit.
that the subject account was opened simply as a matter of
convenience for decedent (see e.g. Matter of Corcoran, 63 AD3d at
97; Matter of Johnson, 7 AD3d at 960).
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McCarthy, J.P., Devine and Clark, JJ., concur.
ORDERED that the order is affirmed, with costs.
ENTER:
Robert D. Mayberger
Clerk of the Court