Govan v. SunTrust Bank

• Court: District of Columbia Court of Appeals
• Decided: February 23, 2023
• Docket: 18-PR-1236
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 18-PR-1236

EMMA GOVAN, APPELLANT,

V.

SUNTRUST BANK, et al., APPELLEES.

Appeal from the Superior Court of the District of Columbia (2017-LIT-000020)

(Hon. Gerald I. Fisher, Trial Judge)

(Submitted June 3, 2021 Decided February 23, 2023)

Johnny M. Howard was on the brief for appellant.

Christopher G. Hoge and Elena Iuga were on the brief for appellee Julie Ebner Brown, personal representative of the Estate of Emil Ebner.

Robert E. Grant and James P. Lillis submitted a memorandum in lieu of brief for appellee Holy Comforter St. Cyprian Roman Catholic School declaring its intent not to participate in the appeal.

Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and DEAHL, Associate Judges.

EASTERLY, Associate Judge: Emil Ebner died in 2013, leaving behind a

significant amount of wealth and a battery of bank account contracts, wills, and

codicils. This interpleader appeal concerns the disposition of three bank accounts. 2

Two of these accounts—the 2360 and 6409 accounts—were in both Mr. Ebner’s

name and the name of his neighbor and friend, Emma Govan. At a bench trial, the

Superior Court evaluated these accounts under the Uniform Nonprobate Transfers

on Death Act (UNTDA), D.C. Code § 19-601 et seq., and rejected Ms. Govan’s

argument that the accounts carried a right of survivorship, which would allow the

sums on deposit to pass to her outside of Mr. Ebner’s estate. The third account—

the 8554 account—was in the name of Ms. Govan and her siblings. The trial court

concluded it was a gift to Ms. Govan’s siblings subject to the unmet condition

precedent that Ms. Govan pre-decease Mr. Ebner, and that it accordingly became

part of Mr. Ebner’s estate when he pre-deceased her.

Many of Ms. Govan’s challenges to the trial court’s judgment can be

addressed with relative ease and alone would not necessitate discussion in a

published opinion. We distinguish from this group her challenge to the trial court’s

determination that the contracts of deposit for the 2360 and 6409 accounts were not

substantially in the form provided in § 19-602.04(a) of the UNTDA, thus justifying

its consideration of Mr. Ebner’s intent for these accounts under § 19-602.04(b). We

recently examined § 19-602.04(a) in In re Estate of Fulton, 287 A.3d 253 (D.C.

2023). Building on that analysis, we agree with the trial court’s determination that

accounts 2360 and 6409 were not substantially in the form provided in § 19- 3

604.02(a), albeit for somewhat different reasons than the trial court articulated.

Nonetheless we conclude remand is required for further assessment of Mr. Ebner’s

intent under § 19-602.04(b). We otherwise affirm.

I. Facts and Procedural History

Subsequent to the trial proceedings in this case, our court considered and

rejected a challenge to Mr. Ebner’s 2013 will in Govan v. Brown, 228 A.3d 142

(D.C. 2020). Having discussed the underlying facts in some detail in our decision

in the 2013 will contest case, we review here only the facts and procedural history

most salient to this appeal.

The story begins at some unknown time no later than 2002, when SunTrust

Bank savings account 6409 was opened in both Mr. Ebner and Ms. Govan’s names.

There is no contract of deposit for the account in the record. Ms. Govan does not

dispute that the funds in this account “belonged to Emil Ebner before his passing.”

In 2002, Mr. Ebner executed a will. The Fourth Article of the 2002 will

confirm[ed] [his] intention that the beneficial interest in personal property, tangible or intangible, including any bank or brokerage accounts, which is registered or held, at the time of [his] death, jointly in the name of [himself] and 4

any other person, . . . shall pass by right of survivorship or operation of law and outside of the terms of this Will to such other person or persons, if he, she or they survive [him].

The will also named Mr. Ebner’s niece, Julie Brown, as the personal representative,

and another niece, Lisa Winters, as the successor personal representative of

Mr. Ebner’s estate.

Mr. Ebner executed codicils to the 2002 will in 2007 and 2010. The most

significant change effected was in the 2010 codicil, which created an exception to

the Fourth Article’s right of survivorship provision: it stated that there was no

“presumption of joint ownership for treasury bills held jointly in [Mr. Ebner’s] name

and the name of Emma Govan,” and “direct[ed] [the] Personal Representative to

utilize funds from the sale of these treasury bills to cover all costs of administration

of [Mr. Ebner’s] estate as well as federal and state taxes.”

Subsequently, in November 2010, Mr. Ebner opened the SunTrust Bank

money market account 8554 in the name of Ms. Govan and her siblings. No contract

of deposit has been produced for this account, but it is undisputed that Mr. Ebner

was the sole depositor of funds into this account.

Several months after that, in May 2011, Mr. Ebner added Ms. Govan’s name 5

to the existing SunTrust checking account 2360. The account had originally been in

the names of Mr. Ebner, Ms. Brown, and Ms. Winters, but Mr. Ebner removed his

nieces’ names from the account. The 2360 account is better documented than the

others: the record shows that Mr. Ebner and Ms. Govan signed a “Personal Account

Signature Card”—a full page containing account information—which reflects that

the account was revised by “[c]lient [r]equest.” Below the signatures, the card states

the signer “shall be governed by the rules and regulations for this account and the

above signed hereby acknowledge(s) receipt of such rules and regulations.” Below

that, the signature card also contains a notice specifically “[f]or residents of . . .

Washington D.C.,” explaining that “[j]oint accounts can be either with or without

survivorship” and instructing the reader to “[c]hoose” one of the options. It further

explains that “‘With Survivorship’ means that if one owner dies, the surviving

owner(s) become the sole owner of the account. ‘Without Survivorship’ means that

if one owner dies, the surviving owner and the decedent’s estate own the account.”

Neither Mr. Ebner nor Ms. Govan checked either box, and neither signed their name

on the additional lines provided below these boxes.

In 2013, Mr. Ebner executed another will. Without objection from

Ms. Govan, the estate submitted a copy of this 2013 will to this court in its

Supplemental Appendix, although this will was not part of the record below because 6

the trial court had denied its admission to probate. See Govan, 228 A.3d at 148-49.

The 2013 will “deviated” in “significant respects” from the 2002 will. Id. at 146.

Mr. Ebner died on December 27, 2013. After Ms. Govan and Mr. Ebner’s

estate sought to exercise conflicting claims to Mr. Ebner’s many bank accounts,

including the 2360, 6409, and 8554 accounts, SunTrust Bank filed an interpleader

action in Superior Court, see Super. Ct. Civ. R. 22, seeking direction about where to

release the funds and naming Mr. Ebner’s estate, Ms. Winters, Ms. Brown, and

Ms. Govan as co-defendants. 1

Also by this time, “Ms. Govan [had] filed a complaint seeking to set aside the

August 2002 will and codicils and to enter the 2013 will into probate” (before the

1 “The principle of interpleader is that, where two persons are engaged in a dispute, and that which is to be the fruit of the dispute is in the hands of a third party, who is willing to give it up according to the result of the dispute, then, . . . that third person . . . is not to be obliged to be at the expense and risk of defending an action; but, on giving up the thing . . . , he is to be relieved, and the Court directs that the persons between whom the dispute really exists shall fight it out at their own expense.” 7 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1702 (3d ed. Supp. 2022) (internal quotation marks omitted); see also Comment, Super. Ct. Civ. R. 22 (noting that the District’s rule is “substantially similar” to the federal interpleader rule). Thus, “[i]t is well settled that each defendant in an interpleader action must prove his claim by a preponderance of the evidence.” Day v. Kerley, 146 A.2d 571, 573 (D.C. 1958) (internal quotation marks omitted); accord 7 Wright & Miller, Federal Practice and Procedure § 1714. 7

same trial judge who presided over the instant case on appeal). Govan, 228 A.3d at

148. In April 2017, the trial court ruled in the will contest suit that Mr. Ebner’s 2013

will was inadmissible to probate. See id. at 149. It found that, although there was

insufficient evidence that Ms. Govan had unduly influenced Mr. Ebner to execute

the 2013 will (as alleged by the estate), id. at 149 n.5, there was sufficient evidence

that Mr. Ebner lacked capacity to execute the will, id. at 149. Ms. Govan appealed

this judgment; meanwhile, the interpleader action initiated by SunTrust proceeded. 2

The trial court issued its judgment in the interpleader action in October 2018.

It concluded that the 2360 and 6409 accounts were estate assets to be disposed of

under Mr. Ebner’s 2002 will. It further concluded that the 8554 account had been a

gift to Ms. Govan’s siblings subject to the condition precedent that Ms. Govan pre-

decease Mr. Ebner; and that since the condition had not been met, the 8554 account

became part of Mr. Ebner’s estate. Ms. Govan timely appealed. After the

submission of her brief and before the estate had submitted its brief, this court issued

its decision in the separate 2013 will contest case. We concluded there was

insufficient evidence to “rebut Mr. Ebner’s testamentary capacity, which is

2 In January 2018, the trial court released SunTrust from this suit without prejudice, concluding that the bank did not “really . . . hav[e] a status in this litigation other than that they’re holding the money”; it directed the bank, however, to continue holding the disputed funds. 8

presumed” and reversed the trial court’s invalidation of Mr. Ebner’s 2013 will.

Govan, 228 A.3d at 145. Accordingly, in March 2021, the trial court admitted the

2013 will to probate, by which time the parties had already completed briefing in the

instant appeal.

II. Ms. Govan’s Procedural Claims

We first address Ms. Govan’s procedural challenges to the trial court’s ruling

regarding the disposition of three bank accounts initially opened by Mr. Ebner. She

argues that the estate’s claims of ownership of all three accounts are time-barred; the

trial court was impermissibly biased in favor of the estate; and the trial court’s

findings in the 2013 will contest case should have precluded the instant findings with

respect to the 2360 and 6409 accounts. None of these arguments are persuasive.

A. Statute of Limitations

The trial court ruled that the present interpleader action was not barred by a

statute of limitations for two reasons: first, because Ms. Govan failed to cite a

particular statute of limitations to support her argument that the estate’s claims were

time-barred (raising this claim for the first time nearly a year and a half after 9

SunTrust filed its interpleader, Ms. Govan only made reference to an unspecified

“three[-]year statutory” provision); and second, because “Ms. Govan is not in

possession of those accounts. SunTrust is. And the demand was made on SunTrust

by the estate . . . by answering the complaint in this proceeding” as well as by filing

an earlier suit in Maryland. We review Ms. Govan’s challenge to the court’s ruling

de novo. Cf. Daniels v. Potomac Elec. Power Co., 100 A.3d 139, 142-43 (D.C.

2014) (“[E]xpiration of the statute of limitations is a question of law.” (internal

quotation marks omitted)); In re Estate of Green, 816 A.2d 14, 16 (D.C. 2003)

(reviewing de novo an interpretation of D.C. Code § 12-301).

On appeal, Ms. Govan re-asserts her claim that the estate’s claims of

ownership within the SunTrust interpleader action are time-barred. She now cites

the District’s “catch-all” statute of limitations, D.C. Code § 12-301(8), which states

that “actions for . . . which a limitation is not otherwise specially prescribed” “may

not be brought after the expiration of . . . 3 years.” She submits, without justification,

that this “catch-all” provision applies to and renders untimely the estate’s claims of

ownership of all three accounts in this interpleader action.

“Interpleader is a long established equitable remedy designed to avoid

multiplicity of claims and circuity of action. Its foundations are in equity . . . .” 10

Nixon v. Life Ins. Co. of Va., 124 A.2d 305, 306 (D.C. 1956) 3 (internal citation

omitted). “[W]here the equity jurisdiction is exclusive and is not exercised in aid or

support of a legal right, state statutes of limitations barring actions at law are

inapplicable . . . .” Cassell v. Taylor, 243 F.2d 259, 261 (D.C. Cir. 1957) (internal

quotation marks omitted); cf. Naccache v. Taylor, 72 A.3d 149, 155 (D.C. 2013)

(explaining that claims at law are “governed by statutes of limitations that have been

decided upon by the legislature” while the defense of laches applies to equitable

claims). Before this court, Ms. Govan provides no support for her argument that the

estate’s claims of ownership within SunTrust’s interpleader action should be subject

to a statute of limitations, much less any support for her assertion we should apply

the statute of limitations in D.C. Code § 12-301(8). Absent any such arguments, we

discern no basis for Ms. Govan’s statute of limitations defense and we affirm the

trial court’s rejection of it.

3 See Thoma v. Kettler Bros., Inc., 632 A.2d 725, 727 n.5 (D.C. 1993) (explaining that the Municipal Court of Appeals for the District of Columbia and then the D.C. Circuit were predecessors of this court and a decision of the Municipal Court “is therefore binding on a division of this court unless overruled en banc or unless it is inconsistent with (hence was effectively overruled by) a subsequent decision of the [D.C. Circuit] issued before February 1, 1971.”); see also M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971) (“[D]ecisions of the United States Court of Appeals rendered prior to February 1, 1971, . . . like the decisions of this court, constitute the case law of the District of Columbia.”). 11

B. Bias

For the first time on appeal, Ms. Govan alleges that “[t]hroughout the

proceedings, the trial judge exhibited an impermissible bias and was not reasonably

fair in his rulings.” The only factual foundation she provides for this argument is a

number of rulings that she asserts manifest bias “in favor of the familial relationship

between [Ms. Brown] and Emil Ebner” essentially because they were not in her

favor. In light of our demanding standard of review for unpreserved arguments,

Pajic v. Foote Props., LLC, 72 A.3d 140, 145 (D.C. 2013) (explaining that we will

only entertain unpreserved arguments “in exceptional situations and when necessary

to prevent a clear miscarriage of justice apparent from the record” (internal quotation

marks omitted)), and our high threshold for judicial bias claims based on a trial

court’s adverse rulings alone, Plummer v. United States, 870 A.2d 539, 547 (D.C.

2005) (“In all but the most extreme cases, rulings during courtroom proceedings do

not constitute evidence of judicial bias.”), this claim fails.

C. Issue Preclusion

Ms. Govan’s final procedural argument is that the trial court’s findings in the

2013 will contest case with respect to Mr. Ebner’s capacity to move money across 12

his bank accounts preclude the estate’s claims to ownership of the 2360 and 6409

accounts. Citing no case law, she exclusively relies on a passage of the court’s

findings, taken out of context, in which the court stated that:

[Mr. Ebner] knew what it meant to have somebody be the co-owner of an account, and, even though[] he may have shifted significant sums of money in favor of M[s.] Govan[] in the months before he died, [the court didn’t] . . . see [any evidence] . . . that he didn’t understand what he was doing . . . [or] that there was any undue influence upon him to do that.[4]

These remarks do not support an argument that the issue of ownership of the

accounts or disposition of funds under the UNTDA has already been “actually

litigated” and “determined by a valid and final judgment,” Carr v. Rose, 701 A.2d

1065, 1076 (D.C. 1997) (internal quotation marks omitted), two of the requirements

for issue preclusion. The suggestion that the trial court made a finding that

Mr. Ebner in fact intended Ms. Govan to have a right of survivorship in the 2360

and 6409 accounts is refuted by a fuller examination of the court’s remarks. The

court prefaced the language Ms. Govan quotes with a statement indicating it was

specifically resolving whether “the transfer of assets into the joint accounts with

4 Although we reversed the trial court’s denial of Mr. Ebner’s 2013 will to probate, we did not disturb its other findings (i.e., those findings that Ms. Govan claims have preclusive effect here), Govan, 228 A.3d at 145; it does not appear either party had challenged them. 13

[Ms.] Govan were the result of undue influence or that Mr. Ebner lacked capacity to

understand and make those transactions.” The fact that the court concluded that

Mr. Ebner had voluntarily and knowingly put his money in joint accounts with

Ms. Govan does not resolve the categorization of those joint accounts under the

UNTDA or her right to the sums on deposit after Mr. Ebner’s death. As the trial

court explained in rejecting Ms. Govan’s issue preclusion argument:

the determination of the ownership of [the 2360 and 6409 accounts] was not before [the court] in the [2013 will contest case] . . . . No claims or defenses regarding the bank accounts were raised by the parties in that litigation . . . [and the court] didn’t decide . . . the question of ownership of the accounts.

We thus affirm the trial court’s rejection of Ms. Govan’s issue preclusion argument.

III. Ms. Govan’s Claims Regarding Ownership of the 2360, 6409, and 8554 Accounts

We turn next to Ms. Govan’s merits arguments regarding ownership of the

2360, 6409, and 8554 accounts. Ms. Govan argues that the 2360 and 6409 accounts

are nontestamentary assets that pass to her by right of survivorship under the

UNTDA, and she contends that account 8554 was delivered to her as a completed

inter vivos gift. The trial court’s contrary ruling that the 2360 and 6409 accounts are

testamentary assets rests both on its interpretation of the UNTDA and on its factual 14

assessment of Mr. Ebner’s intent; its contrary ruling that account 8554 was a gift to

Ms. Govan’s siblings subject to the unmet condition precedent that she pre-decease

Mr. Ebner likewise rests on determinations of both law and facts. In our review of

a judgment following a bench trial, we review legal conclusions de novo, including

“[t]he construction of a statute.” Reed v. Rowe, 195 A.3d 1199, 1204 (D.C. 2018)

(internal brackets and quotation marks omitted). But with respect to factual findings,

“we view the evidence in the light most favorable to the prevailing party and we

defer to the trial court’s credibility determinations unless they are clearly erroneous.

. . . [W]here the facts admit of more than one interpretation, we must defer to the

trial court’s judgment.” Id. (cleaned up).

A. The 2360 and 6409 Accounts

Because the trial court’s ruling as to the 2360 and 6409 accounts was

predicated on the District’s UNTDA, we begin with an overview of that statutory

scheme. As we recently explained in In re Estate of Fulton, 287 A.3d 253 (D.C.

2023):

Under the District’s common law, joint bank account holders owned their respective deposited funds during their lifetimes, and upon death of one account holder, the decedent’s contributions to the account were treated as assets of the decedent’s estate unless the survivor-claimant established ownership of the funds by virtue of a 15

valid inter vivos gift. . . . This common-law prohibition on recognizing a right of survivorship within a joint account itself was discarded, however, with the passage of the District’s [UNTDA] . . . . [which] was intended to effectuate the passage of funds in a joint account to the remaining account holders . . . outside of probate even though no inter vivos gift was ever made.[5]

Estate of Fulton, 287 A.3d at 255-56 (internal citations and quotation marks

omitted). In addition to retiring these common-law rules regarding the after-death

disposition of funds from joint accounts, the UNTDA aimed to “establish clearer and

more predictable rules to govern the disposition of bank accounts” and reduce

“complexity and uncertainty.” In re Estate of Walker v. Stefan, 160 A.3d 1165, 1170

(D.C. 2017). The UNTDA applies to all accounts “established before, on, or after

the effective date of this chapter [April 27, 2001], whether in the form prescribed in

section 19-602.04 or in any other form.” D.C. Code § 19-602.03(b).

“Giving account holders the opportunity to make express, informed choices

5 Ms. Govan argues that the trial court erred in failing to consider D.C. Code § 19-601.01, the stage-setting provision of the UNTDA that announces the statute’s departure from the common law and states that “[a] provision for a nonprobate transfer on death in an . . . account agreement . . . is nontestamentary.” We see no indication that the trial court failed to consider this provision. The court did not reject the proposition that it is possible to make a nonprobate transfer of deposited funds in a joint bank account; the court simply determined, based on the record of this case and looking to other provisions of the UNTDA discussed below, that no nonprobate transfer had been effected. 16

was a central objective of the D.C. UNTDA.” Estate of Fulton, 287 A.3d at 265 &

n.1 (Easterly, J., concurring). To this end, D.C. Code § 19-602.04(a) provides a

model “account form” and explains that, if the provisions of a bank account’s

“contract of deposit” are “substantially” in the form provided, the account will be

“governed by the provisions [of the UNTDA] applicable to an account of that type.”

D.C. Code § 19-602.04(a). The form allows the account holder to select from a

menu of defined options regarding (1) “ownership”: allowing a choice between a

“single-party account” or “multiple-party account”; (2) “rights at death”: allowing a

choice between “single-party account,” “single-party account with POD (pay on

death) designation,” “multiple-party account with right of survivorship,” or

“multiple-party account without right of survivorship”; and (3) “agency”: allowing

for the identification of one or more agents as well as a choice that either “agency

designation survives disability or incapacity of parties” or “agency designation

terminates on disability or incapacity of parties.” Id. (capitalization omitted). If the

contract of deposit does not “substantially” follow the model, then § 19-602.04(b)

provides that disposition will be governed by the UNTDA provisions “applicable to

the type of account that most nearly conforms to the” decedent’s intent. Id.

§ 19-602.04(b); see also id. § 19-602.12(a) (providing that “[e]xcept as otherwise

provided in this subchapter,” referring inter alia to § 19-602.04, a multiple-party

account carries a right of survivorship); id. § 19-602.12(c) (providing that a right of 17

survivorship may be negated “by the terms of the account”); Estate of Fulton, 287

A.3d at 263-64(explaining the interaction of §§ 19-602.04 and 19-602.12(a) & (c)).

Regarding the 2360 account, the trial court noted that the signature card only

“ask[ed] the account holder to check and initial one of two options”: whether the

account is a multiple-party account with a right of survivorship or whether the

account is a multiple-party account without a right of survivorship. The court also

found that the explanation of “without survivorship” on the signature card diverged

from the explanation in § 19-602.04(a) and was “contrary to D.C. law.” Lastly, the

court noted that, although Mr. Ebner signed the bank’s signature card, he did not

check or put his signature below either option provided regarding survivorship, and

the court further observed that the form on the signature card did not advise him of

the consequence of failing to select an option. For these reasons, the court concluded

that the bank’s signature card for the 2360 account “f[e]ll[] short of [§] 19-602.04’s

requirement[s].” The court declined to look beyond the signature card to the bank’s

“Rules and Regulations For Deposit Accounts” (“Rules and Regulations”), finding

that the Rules and Regulations document was “internal to SunTrust” and “not

explained to the account holder.” 18

First, we disagree with the trial court that the explanation of the “without

survivorship” options in the signature card and the model form do not align. To be

sure, the signature card and the model form are phrased differently, but the meaning

is the same. The 2360 account signature card states that “‘[w]ithout [s]urvivorship’

means that if one owner dies, the surviving owner and the decedent’s estate own the

account.” The UNTDA model form states that “[w]ithout [s]urvivorship” means

that “[a]t death of party, deceased party’s ownership passes as part of deceased

party’s estate.” D.C. Code § 19-602.04(a). Read in the context of other

provisions—specifically § 19-602.11(b) providing that when the parties are all alive,

the account belongs to them “in proportion to the net contribution of each to the

sums on deposit,” id., and § 19-602.12(c) providing that when the parties die,

“[s]ums on deposit . . . are not affected by the death of a party” if the account is

without right of survivorship, id. (emphasis added)—it is clear that the 2360

signature card and the UNTDA model form are saying the same thing: when a party

to a multiple-party account without survivorship dies, the parties’ ownership shares

are undisturbed. 6

6 We grant it is theoretically possible for the signature card’s reference to the shared ownership that arises without a right of survivorship to refer to something other than that contemplated by the UNTDA (e.g., an equal division rather than in proportion to individual contributions), but we conclude that is not a plausible interpretation of the provision under the circumstances and in any event, no one has argued that this is the basis of a lack of substantial similarity. 19

Second, we disagree that the absence of an explanation on the bank’s signature

card of the “legal consequences” of failing to make a selection from the choices

provided is a basis for concluding that the signature card failed to fulfill the

requirements of D.C. Code § 19-602.04(a). While it would no doubt be helpful to

provide this information, the absence of such an explanation on the signature card

cannot be a basis for concluding that it is not substantially in the form provided by

§ 19-602.04(a), because the statutory model is likewise lacking in this regard. 7

We agree, however, with the trial court’s assessment that the bank’s signature

card was not substantially in the form provided by § 19-602.04(a) because it does

not offer the account holder the full range of choices that the model form does. The

form in § 19-602.04(a) offers choices regarding ownership, rights at death, and

agency, whereas the bank’s form only offers choices regarding rights at death.

7 Mr. Ebner’s estate argues that Mr. Ebner’s lack of selection is itself a reason that the contract of deposit does not substantially comply with § 19-602.04(a). We disagree. The key to compliance with § 19-602.04(a) is that the account holder has been given the opportunity to make these choices about the disposition of deposited funds, see infra, not whether the account holder avails himself of that opportunity. When a contract of deposit is in substantially the form set forth in § 19-602.04(a), but no selections have been made, the court should then look to § 19-602.12(a) and (c) to determine how to categorize the account. Cf. Estate of Fulton, 287 A.3d at 263-64 (explaining that these provisions may fill in where other sections of the UNTDA, like § 19-602.04(b), do not “otherwise provide” (internal quotation marks omitted)). 20

Moreover, within “rights at death,” the model form allows the account holder to

select from five options—“single-party account,” “single-party account with POD

(pay on death) designation,” “multiple-party account with right of survivorship,”

“multiple-party account with right of survivorship and POD (pay on death)

designation,” or “multiple-party account without right of survivorship”—whereas

the signature card offers just two—a multiple-party account with a right of

survivorship and a multiple-party account without the right of survivorship. Because

the signature card provides only a fraction of the menu of options available on the

model form, it cannot be “substantially” in the form provided in § 19-602.04(a).

The deficiencies in the signature card for the 2360 account are not cured by

consideration of the bank’s Rules and Regulations document proffered by

Ms. Govan. As we explained in Estate of Fulton, a bank’s rules and regulations

might be part of a contract of deposit for the purposes of § 19-604.02(a) if they are

part of the bank’s agreement with the account holder under blackletter contract

principles. Estate of Fulton, 287 A.3d at 259-60. It is unclear whether the trial court

relied on such principles in concluding that the Rules and Regulations could not be

considered; in particular we see no indication that the trial court assessed the import

of the language on the signature card seeming to acknowledge and bind the signer

to these Rules and Regulations. But even if we assume that the bank’s Rules and 21

Regulations are part of the contract of deposit for the 2360 account, it would not

change the outcome in this case.

To be sure, the Rules and Regulations provide some additional explanatory

information. For example, they define payable-on-death accounts and note (without

explanation of the mechanics) that the account owner “may designate one or more

beneficiaries”; and elsewhere the Rules and Regulations explain agency accounts

and the power of attorney, noting the documentation that the bank may require for

such designations. But the recognition of these options is scattered throughout a 24-

page document that never cues the account holder to make a selection; places the

burden on the account holder to take additional steps and request additional forms

to choose these options; and thus effectively establishes defaults that the account

will be without either a POD beneficiary or an agency designation. 8 Thus, even

assuming the Rules and Regulations are properly considered, the contract of deposit

for the 2360 account did not give Mr. Ebner “the opportunity to make express,

informed choices” by “set[ting] out a number of decision points and provid[ing] a

space to the side of each where the account holder can . . . indicate a selection,” and

thus it was not “substantially” in the form set forth in § 19-604.02(a). Estate of

8 It appears from the documentation for other accounts in the record that there is a separate form for SunTrust POD designations. We see no such form for the 2360 account, however, in the record on appeal. 22

Fulton, 287 A.3d at 265-66 (Easterly, J., concurring). See generally id. (opining that

a default presumption of survivorship in a proffered bank manual would not have

met the requirements of D.C. Code § 19-602.04(a)); see also id. at 266 n.2 (citing

cases, including In re Estate of Greb, 848 N.W.2d 611, 619 (Neb. 2014), that so hold

based on analogous statutes); In re Estate of Blake, 856 A.2d 1151, 1155 & n.7 (D.C.

2004) (quoting the Judiciary Committee report noting the statute’s purpose to “allow

the depositor to distinguish among the different functions of the multiple-person

account”).

Our analysis regarding the 6409 account is much simpler. Unlike the 2360

account, the court was provided with no signature card or other documents regarding

the opening of this account. And, again, even if we were to consider the Rules and

Regulations, for the same reasons discussed above, that document would be of little

assistance in establishing that the contract of deposit for the 6409 account was in

substantially the same form as the model in § 19-602.04(a).

For these reasons, we conclude the trial court did not err in undertaking to

ascertain Mr. Ebner’s intent for the disposition of both the 2360 and 6409 accounts

pursuant to D.C. Code § 19-602.04(b). To determine Mr. Ebner’s intent with respect

to these accounts, the trial court looked at the 2002 will, the 2010 codicil, 23

Mr. Ebner’s own actions, 9 and Ms. Govan’s statements in the previous trial. This

analysis, however, was incomplete in two respects. First, as noted above, there

remains a question whether the Rules and Regulations proffered by Ms. Govan are

in fact part of a binding contract of deposit 10 in which Mr. Ebner manifested his

intent for a right of survivorship for Ms. Govan (a question that stands apart from

whether that contract of deposit substantially conformed to § 19-602.04(a)). Second,

there is the matter of Mr. Ebner’s 2013 will which the trial court did not consider

because this court had not yet issued our decision holding that it should be admitted

9 The court found that “[a]ll the evidence that was presented at trial was to the effect that this account was used as a convenience account for Mr. Ebner.” Under the UNTDA, during the parties’ lifetimes, parties own funds in a multiple-party account “in proportion to the net contribution of each to the sums on deposit,” D.C. Code § 19-602.11(b), and there is no question that the funds in the 6409 account “belonged to Emil Ebner before his passing.” The question is what was intended to happen to the funds after death. That an account is used for the convenience of the first party during their lifetime does not necessarily mean there is no intent for a multiple-party account to have a right of survivorship. 10 Again, blackletter contract principles apply. See Isaac v. First Nat’l Bank of Md., D.C., 647 A.2d 1159, 1161-62 (D.C. 1994) (“[A] party faced with a clear written agreement must allege and prove fraud, duress, or mutual mistake to negate the disputed provision.”); Riggs Nat’l Bank of Wash., D.C. v. District of Columbia, 581 A.2d 1229, 1251 (D.C. 1990) (“[A] contract [between a bank and its depositors] may be one of adhesion, and is therefore subject to judicial scrutiny for unconscionability.”); see also, e.g., Geiger v. Crestar Bank, 778 A.2d 1085, 1094 (D.C. 2001) (holding a party to terms in “Rules and Regulations” mentioned multiple times in account documents where the party “acknowledged that he received a copy” of the relevant documents). 24

to probate. 11 Accordingly, we vacate the trial court’s ruling pursuant to D.C. Code

§ 19-602.04(b) regarding Mr. Ebner’s intent for the disposition of these two

accounts and remand for further consideration of this issue.

B. The 8554 Account

The trial court found that the 8554 account was a gift to Ms. Govan’s siblings

subject to the unmet condition precedent that Ms. Govan pre-decease Mr. Ebner. It

averred that this “made a great deal of sense at the time the account was open”

because “in his will Mr. Ebner had left Ms. Govan two pieces of real property and

moneys from other accounts but only if she survived him. If she didn’t survive him,

her relatives, with whom Mr. Ebner had relationships and affection, would not have

. . . gained any assets.” As the basis for these findings, the trial court appeared to

11 We note that Ms. Govan appears to seek to make an argument under D.C. Code § 19-602.13(b), which provides that “[a] right of survivorship arising from the express terms of the account [or] section 19-602.12 . . . may not be altered by will.” Id. After quoting the statute’s text, she highlights that the Rules and Regulations assume a right of survivorship, and then references § 19-602.12(c) which discusses when accounts are expressly without right of survivorship. Ms. Govan does not explain how these juxtaposed quotes of statutory provisions are connected to each other or the trial court’s decision. It is not our job to develop Ms. Govan’s argument. See Comford v. United States, 947 A.2d 1181, 1188 (D.C. 2008). If she seeks to make a point that bears on the issues to be addressed on remand, she may clarify her point at that time. Cf. District of Columbia v. Wical Ltd. P’ship, 630 A.2d 174, 182 (D.C. 1993) (declining to provide guidance for issues that “may or may not arise” on remand). 25

credit Ms. Brown’s testimony that “Ms. Govan had acknowledged that the moneys

in [account 8554] belonged to Mr. Ebner.” The trial court also appeared to give

some weight to Ms. Govan’s sworn testimony in the 2013 will contest case that the

8554 account was “Mr. Ebner’s money and only established to give [her] heirs some

funds if [she] happen[ed] to predecease Mr. Ebner,” testimony with which

Ms. Govan was impeached in the present case. The court concluded that the account

“was a conditional gift” and that because the condition was not met, it became part

of Mr. Ebner’s estate.

In challenging this reasoning, Ms. Govan correctly points out that “[t]he bank

account was established in her name and her siblings’ names,” but then makes a host

of unsubstantiated assertions, including that “[t]he social security number attached

to the account was that of Emma Govan,”; “Emil Ebner had nothing to do with the

account”; Mr. Ebner “could not exercise any control over the funds in the account”;

and he “clearly and unmistakably intended to permanently relinquish all interest in,

and control over the bank account.”

Ms. Govan’s unfounded claims do not provide us with any basis to reject the

trial court’s reasoning or credibility assessments. Nor does Ms. Govan provide any

record materials from which we might question the trial court’s ruling regarding the 26

account’s ownership. See D.C. App. R. 10(b)(2), 11(a) (explaining appellant’s duty

to transmit evidence supporting their arguments in civil cases). Based on our

independent review of the Superior Court docket, see D.C. App. R. 10(a)(1), the

exhibits at trial included a one-page account statement associated with the 8554

account as well as a copy of a check Ms. Govan deposited into the account, but it is

not clear what these documents prove. Even more fundamentally, Ms. Govan points

us to no case holding that the person named on a bank account is presumed to be its

owner. We are aware of such cases in other jurisdictions, 12 but as well as not citing

to any of those cases, Ms. Govan has failed to provide any framework for

determining if and when a presumption of ownership might be rebutted. Finally, we

cannot see how consideration of the 2013 will would materially change the trial

court’s analysis, nor does Ms. Govan suggest that it would.

We therefore affirm the trial court’s determination that account 8554 is part

12 See, e.g., EM Ltd. v. Republic of Argentina, 473 F.3d 463, 474 (2d Cir. 2007) (“Under New York law, the party who possesses property is presumed to be the party who owns it. When a party holds funds in a bank account, possession is established, and the presumption of ownership follows.”); In re Int’l Pharmacy & Disc. II, Inc., 158 F. App’x 256, 260 (11th Cir. 2005) (recognizing that “in most states the name or title to a bank account creates a presumption of ownership in the titleholder” (citing Nat’l Bank of Ga. v. Kennesaw Life & Accident Ins. Co., 800 F.2d 1542, 1545 (11th Cir. 1986))). 27

IV. Conclusion

For the foregoing reasons, the judgment of the Superior Court is affirmed in

part, vacated in part, and remanded in part for proceedings consistent with this

opinion.

So ordered.