Davis v. Foulkrod

642 So. 2d 1129, 1994 Fla. App. LEXIS 8999, 1994 WL 513930
CourtDistrict Court of Appeal of Florida
DecidedSeptember 21, 1994
DocketNo. 92-1565
StatusPublished
Cited by4 cases

This text of 642 So. 2d 1129 (Davis v. Foulkrod) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Foulkrod, 642 So. 2d 1129, 1994 Fla. App. LEXIS 8999, 1994 WL 513930 (Fla. Ct. App. 1994).

Opinions

PARMER, Judge.

Alleging undue influence, a personal representative sought to recover the remaining funds then on deposit in financial institution joint survivorship accounts owned at the time of death by the decedent and appellant. The trial judge found that in setting up these accounts the decedent lacked donative intent and did not intend to grant the survivor any interest in the funds on deposit, thereby concluding that the accounts were the subject of undue influence. We reverse.

The facts have a familiar cast. In September 1989, the decedent was an 87 year-old, retired bookkeeper and a widower who had recently lost his spouse after a long term marriage. As he had no children, he turned at first to a nephew to assist him in conducting his affairs, but soon the nephew became very ill and unable to help any further. At this point, decedent decided that two cousins of the deceased wife could help him with his transactions. One cousin was appellant, who lived nearby; the other was a nonresident of Florida. The decedent suggested that he execute two powers of attorney, one for each cousin. The nonresident cousin thought this geographically disadvantageous, owing to her location, so in the end only the power in the name of appellant was used.

Soon afterwards, four joint accounts were opened at Savings of America in the names of both the decedent and appellant, followed two days later by another joint account at BankAtlantic. Decedent also then gave appellant his general power of attorney. One month after that, a joint account was opened at C & S Bank, and she was added as a joint owner to an account at Pruco Securities Corporation. Two months later, he sold his house and the proceeds were placed in two new joint accounts at IDS Financial Services. In short, in a period of four months, all of the subject joint accounts between decedent and appellant were established. All accounts contained an express agreement that the decedent and appellant were joint owners with rights of survivorship and that, upon the death of one, the other would become the sole owner of the funds then remaining in the account.

There is no question that these arrangements had as their initial purpose, in the words of the trial court, “to provide access to monies [sic] in the event they were needed for the decedent’s maintenance and support at a time when he would be unable to act for himself.” There was also no testimony suggesting that decedent harbored any contrary understanding to the import of the survivor-ship accounts — i.e., that appellant would succeed to the ownership of all funds remaining upon his death.

In fact, the evidence is uncontradieted that decedent made all of his own financial decisions throughout this period of time. He alone initiated the process of transferring his assets into joint accounts, without prior consultation with appellant. When he began the process in September 1989, he summoned agents of Prudential Bache to his home and, with both appellant and the nonresident cousin present, raised the subject of making the transfers. The Prudential agent testified that it was clear that it was decedent’s idea and that he fully understood the effect of such a transfer. Representatives of both Savings of America and BankAtlantic testified that decedent did all of the talking, expressed a desire that the accounts be placed in the survivorship form and clearly understood the consequences of so doing. Moreover, the nonresident cousin was present at all of these undertakings, along with appellant.

[1131]*1131It should also be noted that, while appellant suggested Prudential Bache as an institution to place his funds, after meeting with the Prudential Bache agent decedent decided against them. The only other institution suggested by appellant was IDS, but decedent took over the matter after contact with IDS was initiated. Indeed, the IDS agent testified that decedent asked many intelligent and appropriate questions and showed his accounting background. In his presence, decedent even telephoned the nephew, who had previously assisted him in handling his financial affairs, and sought his advice on the IDS transaction.

In sum, the record evidence shows without contradiction that appellant’s only role in establishing the several joint accounts in sur-vivorship form was that when decedent indicated his interest in transferring his funds appellant suggested two possible institutions, one of which he rejected and the other which he alone decided to use, and appellant along with the other cousin of his deceased wife was present for the conferences. The evidence that appellant either procured the transfers, or played any other role in the actual decision to make them, is thus nonexistent.

Decedent had been hospitalized in August 1989, complaining of severe shortness of breath and chest pains. His patient chart describes him as “well oriented,” and the records are filled with entries describing him as alert and cooperative. While they also contain many references to his severe grief and depression from the death of his wife in March 1989, they do not contain any suggestion that his grief impaired or impeded his ability to make personal financial decisions. Indeed, the records show that he struggled to get well; one entry from a dietician reads:

“8-24-89. [Patient] states: ‘I’ve been trying to increase on everything, but I can’t gain any weight. [Patient] admits, T am heavy on the milk, I drink enough to sink a battle ship.’ ”

The August 1989 discharge summary shows him to suffer from congestive heart failure and advanced kidney failure. The doctors recommended that he be placed in a retirement or nursing home, and so he was on 30 September 1989. Upon admission, he told the administrator that he was lonely since his wife had died and that he wanted to be around other people “to get involved in a social life.” In March 1990, he was twice readmitted to the hospital with his heart and kidney failure now severely advanced.

All parties agreed that decedent was competent. In spite of his declining physical health, there is no suggestion in any medical record that he was anything other than alert and comprehending. One doctor recommended in August 1989 that he be seen by a psychiatrist for “pathological” grief and depression, but decedent himself decided against any such treatment. His records contain no indication at any time that he had become mentally unable to decide his own affairs. In fact, after being asked to describe the difference between grief and depression, his regular doctor described his mental condition as normal grief.

He died 31 March 1990. His will had a few small bequests and left the remainder of his estate to the nonresident cousin of his wife and to appellee in equal shares. The will does not mention appellant.

In finding that the establishment of all of the subject joint survivorship accounts was tainted by the undue influence of appellant, the trial court reached its decision by the following analysis. The court first decided that “[t]here is substantial evidence to support a finding that the decedent lacked the requisite donative intent [to make a gift of the joint account funds at his death to appellant].” 1 Next, observing that the decedent had been totally dependent on his wife for maintaining his home and preparing his meals, the court noted that appellant “would drive the decedent back and forth to all necessary appointments.” As the court de[1132]*1132scribed it, in decedent’s deteriorated physical and emotional state:

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Cite This Page — Counsel Stack

Bluebook (online)
642 So. 2d 1129, 1994 Fla. App. LEXIS 8999, 1994 WL 513930, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-foulkrod-fladistctapp-1994.