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Wexler v. Rich

Florida Court of Appeal, Fourth District

February 22, 2012

Linda WEXLER, Appellant,
v.
Miriam RICH, Appellee.

Page 1098

Manuel Kushner of Kaye Scholer LLP, West Palm Beach, for appellant.

Edward Downey of Downey & Downey, P.A., Palm Beach Gardens, for appellee.

GROSS, J.

This case presents the question of whether a married couple established tenancy by the entirety bank accounts under the guidelines set forth in Beal Bank, SSB v. Almand & Associates, 780 So.2d 45 (Fla.2001). We hold that the couple did not open such accounts and reverse the final order of the circuit court.

This appeal arose from litigation over the proceeds of two bank accounts previously held by the now deceased Donald Rich (" Rich" ). In 2009, Rich's daughter from a first marriage, Linda Wexler, filed a complaint against Rich's second wife, Miriam Rich, claiming that she had conspired to appropriate Rich's estate assets at the daughter's expense. In pertinent part, the daughter contended that Miriam improperly caused Rich to transfer assets from bank accounts where Rich was the sole signatory, with the daughter as a beneficiary, into joint survivorship accounts with Miriam. Miriam's answer denied the allegations and asserted that since Rich's death, the subject accounts were unlawfully re-titled into Rich's revocable trust without her consent. Miriam counterclaimed, seeking a declaration of her continued ownership in the accounts' funds and the imposition of a constructive trust over those proceeds in her favor. The

Page 1099

trial court entered an order in Miriam's favor.

The testimony at trial told the following tale of the bank accounts. On November 8, 2007, Rich opened two single-party bank accounts in his own name with Bank United. On February 4, 2008, both accounts were converted into multi-party accounts with Miriam as a co-signer with a right of survivorship. Miriam and Rich told the Bank United employee who effected the account conversions that they wanted to open " joint accounts." The employee inputted information into the bank's computer and generated two new account forms. The bank's forms contained a section entitled " Ownership of Account; " two of the options were " Multiple-Party Account" and " Multiple Party Account— Tenancy by the Entireties." Another section of the forms, entitled " Beneficiary Designation," contained various survivorship options. On each form, the bank employee checked the option designating the account as a " Multiple-Party" account, and not a " Multiple-Party Account— Tenancy by the Entireties." As to the beneficiary designation, the bank employee checked the box designating each account as a " Multiple-Party Account with Right of Survivorship." The bank employee made these selections because Miriam and Rich had told her that they wanted to open " joint accounts" and because they did not expressly request that either account be held in the form of a tenancy by the entirety. Rich and Miriam had never discussed tenancies by the entirety and Miriam was not familiar with the concept. Moreover, because the employee was unfamiliar with the details of a tenancy by the entirety bank account, she did not discuss that form of ownership with the Riches.

Although there was a place on the account agreement forms for a customer to initial next to the type of account selected, neither Rich nor Miriam initialed that part of the form, nor were they asked to do so. After they reviewed the agreements with the employee for accuracy, Rich and Miriam signed each form at the bottom.

On May 5, 2009, Rich and Miriam went to Bank United and had the employee close both of the accounts opened on February 4, 2008. At the time they were closed, each account had a balance of $105,478.05. The employee cut two checks in that amount, each payable to Rich. Miriam did not object to the checks in Rich's name alone because she believed that either of them was free to withdraw funds from the account with the consent of the other.

That same day, Rich and Miriam traveled to Floridian Community Bank where, with Miriam's knowledge, Rich deposited the two Bank United checks totaling $210,956.10 into a newly created account which was titled in Rich's name alone, with Miriam and the daughter as equal " pay on death" beneficiaries. These funds were deposited along with funds from other accounts that are not at issue in this appeal. On May 7, 2009, Miriam drove Rich back to the Floridian Community Bank where, without her consent or knowledge, he signed papers transferring the ownership of the account from his individual name (with Miriam and the daughter as beneficiaries) to his revocable trust.

After Rich died three days later, the entire balance of $444,007.97 was withdrawn and made payable to his trust, rather than being split equally between Miriam and the daughter. Miriam first learned that Rich had changed the title to the account when she sought to transfer funds into a certificate of deposit a few days after his death. According to Miriam, she had never intended to waive her rights to the Bank United funds, but declined to object when they were transferred to the

Page 1100

single-party account because she knew Rich was agitated and did not want to upset him, ...


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