Estate of Gainer, In re

• Decision Date: 29 March 1991
• Docket Number: Nos. 90-00196,90-01129,s. 90-00196
• Citation: 579 So.2d 739,16 Fla. L. Weekly 838
• Parties: In re ESTATE OF Alma S. GAINER, deceased. Inez G. DUNCAN, Vivian S. Gibson, Mollye S. Medeski, Thomas L. Sapp, Patricia Ann Hardison, Linda Sue Saye, and Ruth E. Bruner, Appellants, v. Ronald DAVIS and Shirley Davis, individually and as Personal Representatives of the Estate of Alma S. Gainer, deceased, Appellees. 579 So.2d 739, 16 Fla. L. Week. 838
• Court: Florida District Court of Appeals

Page 739

579 So.2d 739

In re ESTATE OF Alma S. GAINER, deceased.

Inez G. DUNCAN, Vivian S. Gibson, Mollye S. Medeski, Thomas

L. Sapp, Patricia Ann Hardison, Linda Sue Saye, and Ruth E. Bruner, Appellants, v.Ronald DAVIS and Shirley Davis, individually and as

Personal Representatives of the Estate of Alma S.

Gainer, deceased, Appellees.

Nos. 90-00196, 90-01129.

579 So.2d 739, 16 Fla. L. Week. 838

District Court of Appeal of Florida,

First District.

March 29, 1991.

A.B. Blackburn, Jr., Jacksonville, and Tyrie A. Boyer of Boyer, Tanzler & Boyer, Jacksonville, for appellants.

Frank E. Bondurant of Roberts and Bondurant, Marianna, for appellees.

PER CURIAM.

This cause is before us on appeal from orders entered in probate proceedings denying removal of the personal representatives, granting removal of the trustees, awarding bank accounts as non-estate assets, and granting attorney fees, accountant fees, and special master fees.On appeal, appellant contends that: (1) bank account 046, specifically designated in decedent's will as a trust asset, and checking account 587 were improperly designated as non-estate assets; (2)the trial court erred in refusing to remove the personal representatives; and (3)the trial court erred in allowing payment by the estate of attorney fees, accountant fees, and other costs which resulted from legal representation of the personal representatives in their individual capacities.We reverse as to each issue.

Alma S. Gainer died on December 22, 1983, leaving a will dated October 5, 1983.¹Mollie D. Sapp, a trust beneficiary under Article II of the will, died on September 2, 1986.The will was admitted to probate on January 6, 1984.

On February 11, 1983, Mrs. Gainer's savings account (account 046) was changed from a personal account to a joint account with right of survivorship in Shirley Davis.On August 7, 1981, Mrs. Gainer's checking account (account 587) was changed from a personal account to a joint account with right of survivorship in Ronald and Shirley Davis.

Following Gainer's death, the Davises, as personal representatives, filed an inventory and several accountings, which the court held were insufficient.The beneficiaries subsequently filed a petition to remove the personal representatives for their failure to comply with court orders.The trial court denied the motion and ordered partial distribution of the estate.The trial court designated accounts 046 and 587 as non-estate assets and awarded those accounts to Mr. and Mrs. Davis.

The issue presented is whether the presumption of Section 658.56, Florida Statutes, pertaining to bank accounts in the name of two or more persons, controls or is rebutted by evidence indicating the decedent's contrary intent.Section 658.56, Florida Statutes(1989), ² creates a rebuttable presumption that appellees have a survivorship interest in the two bank accounts which were maintained by the decedent in both of their names, but this presumption may be overcome by clear and convincing proof of a contrary intent.

The Davises' letter to the administrator ad litem dated February 9, 1988, indicates that after the death of Mr. Gainer in 1981, the decedent, Alma Gainer, was feeling lonely and seemed to need the Davises "more than ever."In 1982, the decedent "seemed to know that her time was limited.She had many aches and pains and bouts of illness."She called on the Davises to meet her personal needs many times.³After Mr. Gainer's death, the Davises were added to the contested accounts as joint tenants.

Shirley Davis testified that neither she nor her husband deposited or withdrew money from these accounts prior to the death of Mrs. Gainer.She further testified that the only money deposited in these accounts came from Mrs. Gainer's funds; that disbursements were used solely for the benefit of Mrs. Gainer; and that the money was Mrs. Gainer's "as long as she lived."Furthermore, Mrs. Davis testified she would not have made a claim if Mrs. Gainer had withdrawn the money during her lifetime.On January 10, 1984, Mrs. Davis closed out accounts 587 and 046 on the advice of counsel.

We hold that Mrs. Davis's testimony is inconsistent with, and contrary to, a completed inter vivos gift in the joint accounts.This testimony is essentially uncontradicted and reveals that a present interest in the contested accounts was not created.The evidence also shows there was no acceptance of the inter vivos gifts.⁴Clear and convincing evidence supports a finding that survivorship accounts were not created.⁵Therefore, we must reverse the trial court's order designating the accounts as non-estate assets.SeeGentzel v. Estate of Buchanan, 419 So.2d 366(Fla. 1st DCA1982);review denied, 426 So.2d 26(Fla.1983);King v. Estate of King, 554 So.2d 600(Fla. 1st DCA1989), review denied, 564 So.2d 487(Fla.1990).

Section 733.504(9), Florida Statutes, provides that a personal representative may be removed for holding or acquiring conflicting or adverse interests against the estate which will adversely interfere with administration of the estate as a whole.In the instant case, a conflict arose when the Davises asserted an interest in the two estate assets, accounts 046 and 587.In re Estate of Katherine Bell v. Johnson, 573 So.2d 57(Fla. 1st DCA1990).Accordingly, we reverse the trial court's order and remand for removal of the Davises as personal representatives.

Section 733.106, Florida Statutes, authorizes the payment of attorney fees to any attorney who has rendered services to the estate, provided the services benefit the estate.Samuels v. Ahern, 436 So.2d 1096(Fla. 1st DCA1983), review denied, 449 So.2d 265(Fla.1984).In the instant case, services rendered by the attorney for the personal representatives incident to the preparation of their own claim for estate assets cannot properly be said to have benefited the estate.Therefore, we reverse and remand with directions that the court excise from the attorney fee award those fees resulting from the representation of the personal representatives in their individual capacities.

The order under review awarded fees for services rendered in the "preparation of final Fiduciary Income Tax Returns (1989) and final Estate Accounting."In view of the decision herein on the other issues on appeal, some or all of these fees may be improperly awarded under the standard set forth in In re Estate of Wilson, 116 So.2d 440, 443(Fla. 2d DCA1959), andSections 733.602and737.302, Florida Statutes, regarding the standard of care required in managing an estate.⁶Specifically, we note the repeated failure of the personal representatives to comply with the court's orders and the repeated filing of insufficient accountings which imposed additional and perhaps unnecessary costs on the estate.We therefore reverse and remand for reconsideration in light of this opinion, the award of accountant fees.

Section 733.106, Florida Statutes, provides that in probate proceedings, the court may award...