Greene v. Cooke

BAKES, Justice

(concurring in part and dissenting in part).

I agree generally with the analysis of the majority opinion, particularly the rule that a person claiming the right of survivorship in a joint tenancy bank account must prove by clear and convincing evidence the donative intent of the person who deposits his separate property in that bank account. In my opinion, the administrator did,-not carry that burden of proof, and the court should have held that the bank account and the real property were the separate property of Nelson Cooke, thereby giving the pretermitted children an intestate share in those items of property. Any relaxing of the requirement of clear and convincing evidence to prove a gift in joint tenancy bank account situations will only succeed in compounding the legal problems inherent in estate planning and dispositions.