Matter of Cooper

[*1] Matter of Cooper 2004 NY Slip Op 51697(U) Decided on December 23, 2004 Surrogate's Court, Nassau County Riordan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2004
Surrogate's Court, Nassau County

In the Matter of the Petition of Judith Gilman to Compel Edward Cooper, Administrator of the Estate of Felicia Cooper, to Execute a Settlement Agreement and for the Court to Determine Ownership of Settlement Proceeds Held as Joint Tenants with Right of Survivorship, Estate of FELICIA COOPER, Deceased.



327133



Nicholas J. Damadeo, P.C. Petitioner

14 Loft Road

Smithtown, New York 11787

Craco & Ellsworth, LLPRespondent

7 High Street - Suite 200

Huntington, New York 11743

John B. Riordan, J.

This is a decision after trial of a proceeding by Judith Gilman seeking the following relief: that the court find (i) that Washington Mutual Account Nos. 936-149400-1 and 936-664838-0 (the "Washington Mutual Accounts") are joint accounts with right of survivorship, (ii) that Donaldson Lufkin & Jenrette account number 4ZB-004140 ("the DLJ joint account") is a joint account with right of survivorship; and (iii) that Salomon Smith Barney account number 342-06729-11-513 ("the SSB account") into which the assets of the DLJ joint account were transferred is a joint account with right of survivorship. In addition, petitioner seeks a determination that the transfer of 6,676.096 of shares of stock in an income fund on or about

July 31, 2002 from the SSB account to an account in petitioner's individual name is a valid inter vivos gift. If the court does not find that the DLJ joint account is a joint account with right of survivorship, petitioner also seeks reimbursement of $5,652.77 in disbursements advanced by petitioner in the arbitration proceeding commenced by petitioner and decedent against DLJ. Respondent Edward Cooper seeks a determination that the Washington Mutual accounts, the DLJ joint account and the SSB account are assets of the estate, and that the transfer from the SSB account to petitioner's individual account is not a valid gift. The prayers for relief in the order to show cause returnable on August 21, 2003 with respect to compelling respondent to execute a settlement agreement in the DLJ litigation and precluding the custodian of the proceeds from making distribution were resolved by the parties prior to trial. At the conclusion of the taking of evidence, the parties were permitted to submit memoranda of law after the filing of the transcript with the court.

FACTUAL BACKGROUND

Prior to trial, the parties stipulated to certain facts and to the testimony of representatives from Salomon Smith Barney and Dime Savings Bank, respectively, and to the admission into evidence of certain documents.

Felicia Cooper died on November 17, 2002. The decedent was survived by two children, petitioner Judith Gilman and respondent Edward Cooper.

THE DLJ ACCOUNT[*2]

Prior to June 3, 1999, the decedent's principal asset was a brokerage account at Prudential Securities. On or about June 3, 1999, the decedent, on the advice of her then investment advisor, transferred all of the assets in this account to an account in her individual name at DLJ. Sometime around June 1, 2000, the assets in the individual DLJ account were transferred into a joint DLJ account in the names of the decedent and petitioner. The parties concede that at the time the joint DLJ account was opened, neither the decedent nor the petitioner saw or read the first page of the application which contained a box, which was checked, indicating that the account is joint with right of survivorship. Petitioner concedes that she never made any contributions to this account and that all contributions were made by the decedent. The decedent withdrew the sum of $1,500 per month from the account. Prior to the close of the account, petitioner never withdrew any funds from the account although she believed she had the right to do so based upon the account title "Felicia Cooper & Judith Gilman, JT/TEN." All statements for the account were mailed to the decedent's home and were never mailed to petitioner.

At trial, the parties stipulated to the admission into evidence of a June 30, 2000 letter signed by the decedent, solely to show the decedent's state of mind at the time the account was opened. The letter is addressed to DLJ and states that the decedent was aware of the transfer of assets into the joint DLJ account, and that she was also aware that, by virtue of the transfer, she was giving one-half of the assets value to petitioner.

In July of 2001, the decedent and petitioner commenced an arbitration proceeding against DLJ and a federal civil action against the decedent's investment advisor concerning alleged investment losses. The litigation was ultimately settled for $30,000, although the sum of $6,000 was paid in attorney's fees. Petitioner advanced the sum of $5,652.77 for disbursements for which she has not been reimbursed.

The transcript of the prior testimony of the decedent in the arbitration proceeding dated June 4, 2002 was also admitted into evidence by agreement of the parties, again not for the truth of the matters asserted therein, but to show the decedent's state of mind on June 4, 2002. During the course of the litigation, the decedent initially testified that she did not recognize the June 30, 2000 letter, although she did testify that it was her signature. With respect to the letter, the decedent testified: "I can't believe that I signed it." When questioned as to its meaning, the decedent testified: "It says that half of my assets will go to Judith Gilman." When the decedent was asked about a signature on another document, she identified it as her signature when, in fact, petitioner had signed the decedent's name on the document.

The complaint filed in the arbitration proceeding was also admitted into evidence without objection. The complaint alleges that petitioner was put on the account for probate purposes at the suggestion of her investment advisor. Documents submitted by the decedent and petitioner in that proceeding contain allegations that (i) the decedent was never permitted time to read the various agreements; (ii) the document was given to her in blank; (iii) the decedent had health issues as a result of breast cancer, as well as vision problems; and that (iv) petitioner was asked to be put on the account as a joint tenant for probate. The attorney's opening statement at the DLJ hearing was admitted into evidence by agreement as an informal judicial admission. In her opening statement, the attorney representing the decedent and petitioner made statements that the account was the decedent's account; that the money was not petitioner's; that petitioner was asked to be put on the account for purposes of probate and if the decedent got ill, simply so that it [*3]would be a smooth transition so she could take care of the decedent in hard times, if necessary.

Additionally, the transcript shows that when the decedent was asked whether the account was an individual or joint account, she stated that it was an individual account. When questioned as to why the account was titled jointly, the decedent testified that it was because: "[i]n case anything would happen to me, then she takes care of everything."

In January 2001, petitioner signed the decedent's name to two letters addressed to the decedent's investment advisor concerning the account. One of the letters refers to "my account" and "my behalf." The petitioner did not sign her own name to the letters. At trial, she testified that she believed she was more likely to receive a response if she signed the decedent's name.

THE SSB ACCOUNT

In January of 2001, the assets in the DLJ account were transferred to a joint account with right of survivorship at Salomon Smith Barney. The SSB account representative testified at trial that he met with petitioner and gave her the documentation to open the account. He further testified that although he never met the decedent, there was a "sixty percent chance" that he spoke with the decedent on the phone to confirm that the joint account was being opened. The representative testified that at the time the account was opened, he discussed with petitioner the investment objectives of the decedent. There was no discussion as to the investment objectives of petitioner. Additionally, pursuant to the Salomon Smith Barney policy, the SSB account had to be opened as a joint account since it was being funded with the joint DLJ account. Some question exists as to whether the signature on the application was that of the decedent. The respondent failed to produce any credible evidence in support of his claim that the signature on the application was not the decedent's. The only evidence respondent introduced on the theory of forgery was the testimony of respondent's wife. The court finds her testimony to be self-serving and of little credibility.

In July of 2002, a mutual fund having a value of $42,526.73 was transferred from the SSB account to an individual account in petitioner's name. A letter authorizing the transfer was signed by the decedent and petitioner. Although the letter states that the form should be notarized, neither signature was notarized. After the transfer was made, Salomon Smith Barney mailed a letter to the decedent regarding the transfer, to which she did not respond.

THE WASHINGTON MUTUAL ACCOUNTS

In September 1998, the decedent and petitioner had a joint account at M&T Bank. The signature card for the M&T Bank account contained survivorship language. In February 2001, the joint account was closed by the decedent. The testimony shows that, thereafter, the decedent and petitioner, respectively, opened a checking account and a savings account at Dime Savings Bank, both in joint names. Dime Savings Bank was subsequently acquired by Washington Mutual. The signature cards for the Dime accounts do not contain words of survivorship. The signature cards do, however, state that the accounts are subject to the Dime Savings Bank Terms and Conditions, copies of which were provided upon the opening of the accounts. The Dime Savings Bank Terms and Condition state: "In the absence of the words 'tenants in common' clearly and specifically stated on the account signature card, the account will be deemed 'right of survivorship.' This means in the event of the death of one of the joint account holders, the entire account will be paid to the surviving joint account holder." The terms and conditions further [*4]state that the Dime can release the entire balance to either owner while both are alive. The petitioner testified at trial that she made withdrawals from the Washington Mutual accounts at least four times for her own purposes.

Evidence was also adduced at trial that in December of 2000, the decedent met with an elder law attorney. At trial, the attorney testified that it was and is currently her impression that it was the decedent's intention to provide for both her children equally, including with respect to the assets that were jointly held at the time. The attorney testified that she prepared an elder plan for the decedent. She explained to the decedent that the way her assets were titled, i.e., jointly with petitioner, was inconsistent with her stated intention. The decedent showed the attorney a copy of a 1994 Will which indicated that the assets were to be distributed equally between the decedent's children other than cash bequests to grandchildren. The attorney prepared, and the decedent thereafter executed, in February 2001 a Power of Attorney naming petitioner as attorney-in-fact and respondent Edward Cooper as an alternate. The attorney explained to the decedent that she would have to change the title on the account in order to accomplish her intention. The attorney also recommended a gift-giving program equally to petitioner and respondent to accomplish a divestiture of the decedent's assets. The attorney further testified that she believed the decedent had made a gift to petitioner of $20,000 sometime between the December 2000 meeting and the following meeting in February 2001.

OTHER RELEVANT FACTS

The parties also stipulated to introduce into evidence certain medical records of the decedent. The medical records show that the decedent had vision problems and a procedure for cataracts four days after signing the Salomon Smith Barney transfer form.

Evidence was also adduced at trial that petitioner was a loving and caring daughter and that the decedent was grateful to have her.

Lastly, evidence was also introduced to show that the decedent had executed a Will in 1994, but the original was not found. A copy of the Will was given to the elder law attorney by the decedent at their first meeting.

CONCLUSIONS OF LAW

Petitioner conceded at trial that the statutory presumption in Banking Law §675 is inapplicable to the DLJ and SSB accounts as neither DLJ nor SSB are banking organizations (Matter of Levy, NYLJ, Jan. 3, 1994, at 26). Petitioner does, however, seek the application of the presumption under Section 675 of the Banking Law regarding the Washington Mutual accounts. The Banking Law §675 presumption provides that the opening of an account in the names of two individuals, and in form "to be paid or delivered to either, or the survivor of them," is prima facie evidence of an intention to create a joint tenancy (Banking Law §675). The statutory presumption is rebuttable and may be overcome with clear and convincing evidence that the account was opened for convenience and not with the intention of conferring a beneficial interest (see, Matter of Fayo, 7 AD3d 795 [2004]; Matter of Friedman, 104 AD2d 366 [1984]; aff'd 64 NY2d 743 [1984]; Matter of Buxton - Sinclair, 1 Misc 3d 903A [2003]). The presumption can also be overcome by clear and convincing evidence showing that the joint account was created by reason of fraud, undue influence or lack of capacity (see, Kleinberg v Heller, 38 NY2d 836 [1975]; Matter of Fayo 7 AD3d 795 [2004]; Matter of Friedman, 104 AD2d 366 affd 64 NY2d 743 [1984]). [*5]

The Section 675 presumption will arise, however, only where specific words of survivorship appear on the signature card signed by the decedent (Matter of Klecar, 207 AD2d 732 [1994]; Matter of Coon, 148 AD2d 906 [1989]; Matter of Timoshevich, 133 AD2d 1011 [1987]; Matter of Burns, 126 AD2d 809[1987]; Matter of Camarda, 63 AD2d 837 [1978]; Matter of Esposito, NYLJ, July 7, 2003, at 19, col 3). Words of survivorship appearing on the passbook itself are not controlling (Matter of Fenelon, 262 NY 308 [1933]; Matter of Coddington, 56 AD2d 697 [1977]).

The requirement that survivorship language must appear on the signature card has been strictly enforced. For example, in Matter of Coon (148 AD2d 906 [1989]), the signature card for one of the challenged bank accounts contained a circled "J" which according to bank regulations signified a joint account. The court held that the statutory presumption did not apply since the survivorship language was not present on the signature card.

Similarly, this court has consistently held that the words of survivorship must appear on the signature card or ledger that creates the bank account (Matter of Frankel, NYLJ, Sept. 25, 1991, at 30; Matter of Schwartz (NYLJ, May 22, 1991, at 25). In Matter of Schwartz (NYLJ, May 22, 1991, at 25), this court held that survivorship language in a disclosure statement and acknowledgment of receipt of the disclosure statement will not give rise to the statutory presumption when no survivorship language appears on the signature cards. The omission of words of survivorship on the signature card precludes application of the presumption (Matter of Schwartz, NYLJ, May 22, 1991, at 25). The survivor may, however, even without the benefit of the presumption, still present evidence to establish a common law joint tenancy with right of survivorship. In that case, however, the survivor must affirmatively introduce evidence of intent (Matter of Schwartz, NYLJ, May 22, 1991, at 25; Matter of Thomas, 43 AD2d 446 [1974]; Matter of Hamburg, 151 Misc 2d 1034 [1991]).

In Matter of Ancell (191 Misc 2d 252 [Sur. Ct. Westchester County 2002] ), the court refused to apply the statutory presumption because the signature card did not contain survivorship language. In that case, the surviving joint tenant argued that the First Department in Sutton v Bank of New York (250 AD2d 447 [1998]) did away with the requirement that the survivorship language had to appear on the signature card. The Surrogate rejected the argument that the Sutton case changed the law by no longer mandating survivorship language on the signature card and stated that even if the First Department had done so, the court would follow the Appellate authority in the Third and Fourth Departments. In Matter of Butta (192 Misc 2d 614, affd 3 AD3d 347 [2004]), however, the court adopted the Sutton rationale holding that although the signature card is the best evidence to give rise to the statutory presumption, it is not the exclusive means of doing so. In Matter of Butta (192 Misc 2d 614 [2004], aff'd 3 AD3d 347 [2004]), however the signature card could not be located by the bank. A bank employee testified that the standard signature card used by the bank at the time the account was opened contained survivorship language.

Here, the signature cards for the Washington Mutual accounts did not contain any survivorship language. The fact that the M&T bank account contained survivorship language on the signature card is not persuasive especially since petitioner has not shown that the proceeds of the M&T account were immediately rolled over into the Dime accounts (which later became the Washington Mutual accounts after the merger of Dime and Washington Mutual). A portion of [*6]petitioner's deposition testimony admitted into evidence reflects that the M&T assets may have initially been transferred into a bank other than the Dime. Regardless, the court follows its holding in Matter of Frankel (NYLJ, Sept. 25, 1991, at 30) and Matter of Schwartz (NYLJ, May 22, 1991, at 25) and finds that petitioner cannot avail herself of the statutory presumption with respect to the Washington Mutual accounts. Thus, petitioner has the burden to establish by clear and convincing evidence that the decedent intended to create a joint tenancy with survivorship rights under common law (Matter of Timoshevich, 133 AD2d 1011 [1987]; Matter of Hayes, NYLJ, Sept. 3, 1998, at 22; Matter of Thomas, 43 AD2d 446 [1974]).

In the absence of the Section 675 presumption, the question with respect to the Washington Mutual accounts is identical to the question with respect to the DLJ joint account and the SSB account. The relevant inquiry is whether the decedent intended to create a joint tenancy and confer a present beneficial interest in petitioner with respect to each account (see, Matter of Klecar, 207 AD2d 732 [1994]; Matter of Friedman, 104 AD2d 366 [1984]; Matter of Hayes, NYLJ, Sept. 3, 1998, at 22). The petitioner must adduce affirmative proof of intention (Matter of Thomas, 43 AD2d 1011[1974]). Once the joint tenant has introduced such affirmative proof, the party contesting the title of the survivor is required to establish by clear and convincing evidence fraud, undue influence, lack of capacity to make a gift or that the account was opened for the convenience of the decedent (Kleinberg v Heller, 38 NY2d 836 [1975]; Matter of Klecar, 207 AD2d 732 [1994]).

If, however, there is a confidential relationship between the decedent and the alleged donee, the alleged donee is also required to establish, by clear and convincing evidence, that the transfers were fair, voluntarily and knowingly made by the decedent and were not influenced by fraud, duress or coercion (Matter of Timoshevich, 133 AD2d 1011 [1987]).

Similarly, if there is a fiduciary relationship, the transaction will be subject to closer scrutiny (Matter of Wideman, NYLJ, Aug. 21, 1985). By virtue of a fiduciary relationship, the joint tenant will have the burden to prove, by clear and convincing evidence, that the account was not a matter of convenience (Matter of Byoir, NYLJ, Jan. 31, 2000 at 29). Here, Respondent argues petitioner had both a confidential relationship and a fiduciary relationship with the decedent.

THE WASHINGTON MUTUAL ACCOUNTS

As indicated above, the signature cards for the Washington Mutual accounts did not contain survivorship language and therefore, the statutory presumption is inapplicable. In the absence of the presumption, the petitioner must prove that the decedent intended to create a joint tenancy and make a present gift at the time the accounts were opened. The only evidence petitioner has introduced in support of her position is that she withdrew from the account for her own purposes at least four times and that the prior M&T accounts had words of survivorship on the signature cards. The petitioner has not shown that she contributed any funds to the accounts or that the decedent did not exercise control over the accounts. The evidence put forth by the petitioner, in particular her self-serving and uncorroborated statements regarding withdrawals from the account, is clearly insufficient to meet her initial burden. Taken together, the evidence merely invites conjecture as to the decedent's intention when she opened the accounts. Accordingly, it is not necessary to determine whether petitioner had a fiduciary or confidential relationship with the decedent since petitioner has failed to met her initial burden with respect to [*7]the Washington Mutual accounts.

THE DLJ ACCOUNT

The evidence petitioner has presented to meet her initial burden that the DLJ account is a joint account with right of survivorship is that the decedent signed a letter on June 30, 2000 acknowledging that the assets in her individual account were being transferred into a joint account with petitioner and that she was giving one-half of the assets to petitioner. The first page of the joint DLJ account application indicates that the account was joint with right of survivorship, however, neither the decedent nor petitioner ever saw or read the application. In addition, petitioner, in support of her position, points to the decedent's failure to change the title of the account after the meeting with the elder law attorney.

Assuming, arguendo, that by virtue of the June 30, 2000 letter put into evidence, that petitioner has made out a prima facie case that the DLJ account was a joint account with right of survivorship, nevertheless, the court finds that respondent has proven by clear and convincing evidence that the account was opened merely for the convenience of the decedent.

The following factors are considered in determining whether a joint account is a convenience account or a true joint account: whether the decedent was the sole depositor to the account (Matter of Van Bogelen, 204 AD2d 650 [1994]; whether the creation of a survivorship interest would deviate significantly from the decedent's testamentary plan (Matter of Johnson, 7 AD3d 959 [2004]; Matter of Camarda, 63 AD2d 837 [1978]); whether the account was used exclusively by the decedent during her lifetime (Matter of Camarda, 63 AD2d 837 [1978]) whether the decedent retained the right to withdraw the proceeds (Matter of Niesz, NYLJ, Apr. 24, 1996, at 31); and the conduct of the surviving joint tenant (Matter of Boyd, 186 AD2d 394 [1992]; Matter of Polacco, NYLJ, Dec. 5, 1994, at 34).

Here, the evidence at trial showed that decedent made all contributions to the account, petitioner never withdrew from the account and all statements were mailed to the decedent and not to petitioner. Decedent withdrew from the account on a monthly basis. Petitioner's actions also show that she viewed the account as the decedent's as shown by the January 2001 letter to the decedent's investment advisor. The testimony of the elder law attorney, which petitioner concedes is respondent's most credible evidence, also supports the conclusion that the account was titled jointly merely for convenience since the decedent had unequivocally expressed her intention that all of her assets, including the assets titled jointly, would pass equally to her children at her death.

Decedent testified that the DLJ joint account was an individual account and that the account was titled jointly to allow petitioner to take care of everything if anything happened to decedent. Petitioner argues that the decedent's statements are of no probative value because they were made some time after the account was opened. She also argues that the statements made by the decedent in the DLJ litigation are inadmissable against her (see, Matter of Stumpf, 204 NY 413 [1912]). The court agrees that the decedent's statements made after the opening of the account were only relevant to her state of mind on the date the statements were made, and that the statements are not admissible for the truth asserted therein. Since the statements were made some time after the opening of the account, it would only be speculation as to whether the statements reflect decedent's intent in establishing the account in the first instance. Moreover, the court agrees with the petitioner that the declarations of a decedent made subsequent to a gift [*8]which are inconsistent with the gift are not generally competent as affirmative evidence of the statements made, but are only admissible on questions of undue influence or mental competency (see, Matter of Stumpf, 204 NY 413 [1912]). Here, however, the other factors were sufficient, without the declarations of the decedent, to show that the account was a convenience account. The other evidence - (i) that the decedent made all contributions to the account; (ii) that only the decedent made withdrawals to the account; (iii) that statements to the account were mailed only to the decedent; (iv) the elder law attorney's impression that decedent wanted to provide equally to the children; and (v) that the creation of a joint account deviates entirely from the decedent's testamentary plan as expressed in the 1994 Will, of which there has been no direct proof of destruction - clearly supports the conclusion that the account was a convenience account. In fact, petitioner's own conduct leads to the conclusion that the account was a convenience account. Petitioner sent an e-mail to her brother after their mother's death which was admitted into evidence stating that the proceeds of the DLJ settlement would be split equally between them. It is unlikely that petitioner would have agreed to such a distribution if she believed she was the owner of the account. Similarly, her actions with respect to the January 2001 letter lead to the same result.

THE SSB ACCOUNT

Next, having found that the DLJ joint account is a convenience account, the court considers whether the SSB account was a joint account with right of survivorship or merely a convenience account. The SSB account was opened in January 2001. According to the testimony of the SSB representative, the title on the SSB account, pursuant to Salomon Smith Barney policy, had to be the same as the DLJ joint account which was the source of the transfer. The account representative testified that he gave the account application to petitioner, who returned the executed application to him. The account representative could not be certain that he even spoke to the decedent at the time the account was opened, and even if he did, it was only a 60 second conversation.

The court finds that petitioner has not produced any affirmative evidence of decedent's intent to establish a joint account, and therefore has not met her initial burden of showing that the decedent intended to confer a beneficial interest in petitioner at the time of the opening of the account. Nonetheless, even if petitioner is found to have met her initial burden, the evidence put forth by respondent clearly shows that the SSB account was a convenience account. The decedent contributed all funds to the account and received all of the statements on the account. The assets used to fund the SSB account were the assets in the DLJ joint account. The creation of a survivorship account is in direct conflict with the decedent's testamentary plan as embodied in the 1994 Will and as expressed to the elder law attorney. Moreover, other than the purported gift, the petitioner never made any withdrawals from the account.

THE TRANSFER TO PETITIONER'S INDIVIDUAL SSB ACCOUNT

On or about July 31, 2002, there was a transfer of 6,676.096 shares of Smith Barney Diversified Strategic Income Fund CLB from the SSB account to an individual account in petitioner's name. In view of the court's finding that the SSB account was not a true joint account, the question is whether this transfer was a valid inter vivos gift.

In order to have valid inter vivos gift, the petitioner must establish three essential [*9]elements: donative intent, delivery sufficient to divest the donor of dominion and control over the property, and acceptance (Gruen v Gruen, 68 NY2d 48 [1986]; Matter of Szabo, 10 NY2d 94 [1961]). Here, the parties do not dispute the elements of delivery and acceptance. The only element at issue is donative intent. The donee bears the burden of proving the gift by clear and convincing evidence. One who attempts to establish an inter vivos gift has a heavy burden (Matter of Henry, NYLJ, Jan. 13, 2000, at 34). The proof must be of great probative force and must clearly establish every element of a gift (Matter of Abramowitz, 38 AD2d 387 [1972], affd 32 NY2d 654 [1973]; Matter of Kennedy, 36 AD2d 549 [1971]; Matter of Kaminsky, 17 AD2d 690 [1962]). "It is also well-settled law that the testimony of a relative where a gift is alleged must be scrutinized" (Matter of Henry, NYLJ, Jan. 13, 2000, at 34).

Petitioner has submitted as proof of donative intent that the decedent signed the Letter of Authorization to Transfer Assets and that Salomon Smith Barney wrote to the decedent to confirm the transaction and that the decedent never responded. Some evidence was adduced at trial showing that the elder care lawyer addressed gift-giving with the decedent and stated that she thought there might have been a gift of $20,000 to petitioner by the decedent, but no other evidence was submitted by petitioner to confirm that there was, in fact, such a gift. Respondent avers that petitioner obtained the necessary forms to consummate the transfer and that there was no communication regarding the transfer between the decedent and the account representative. The transfer was made four months prior to death. Additionally, according to the medical records stipulated into evidence, the decedent, who had vision problems, had a procedure for her eye four days after the form was executed. The form was required to be notarized and was not. Respondent questions the decedent's ability to read the form given her vision difficulties.

Although the transfer was not made by use of the power of attorney, the petitioner was the attorney-in-fact for the decedent at the time of the transfer. Thus, at the time the gift was made, a fiduciary relationship existed. Petitioner must show, therefore, that the transaction was voluntary (Matter of Mazak, 288 AD2d 682 [2001]; Matter of Camarda, 63 AD2d 837 [1978].

Petitioner has failed to establish by clear and convincing evidence that the decedent intended to make a gift. No evidence was presented to show that the decedent knew what she was signing or understood the legal consequences of what she was signing. Accordingly, petitioner has failed to prove donative intent. The transfer to petitioner's individual SSB account does not constitute a valid inter vivos gift and must be returned to the estate.

REIMBURSEMENT FOR DISBURSEMENTS ADVANCED BY PETITIONER

Having found that the DLJ account was a convenience account, the petitioner is entitled to reimbursement for the disbursements advanced by her in the amount of $5,652.77 in connection with the DLJ litigation.

Lastly, the court addresses petitioner's arguments regarding evidence at trial. Petitioner avers that (i) it was error to exclude a response from the investment advisor to the January 2001 fax to which petitioner signed the decedent's name and (ii) statements made by the attorney in the DLJ litigation are barred by CPLR 4519 and should not have been allowed in evidence.

Petitioner argues that the response to the January 2001 fax was relevant to show that there was no fraud or undue influence exerted by petitioner. Even if the response was admitted, the evidence still would have established that the DLJ joint account was a convenience account. Moreover, no finding of fraud or coercion on the part of petitioner was made. Additionally, [*10]petitioner did not object to the admission of the attorney's statements in the DLJ proceeding at trial and, therefore, waived any objection (see, Matter of Maijgren, 193 Misc 814 [1948]). The statements were viewed as mere "informal judicial admissions" and are not conclusive (Morgenthow & Latham v Bank of New York Company, Inc., 305 Ad2d 74 [2003]). Moreover, the purpose of CPLR 4519 is to protect the estate (Matter of Johnson, 7AD3d 959 [2004]) against the testimony of an interested party. The attorney was not an interested party to the transaction. The court based its decision on the conduct of the decedent which is the best evidence of the decedent's intent.

Accordingly, the court finds that the Washington Mutual accounts, the DLJ joint account and the SSB account are assets of the estate.

This constitutes the decision of the court.

Settle decree.

Dated: December 23, 2004

JOHN B. RIORDAN

Judge of the

Surrogate's Court