King v. Estate of King

• Citation: 554 So.2d 600
• Decision Date: 20 December 1989
• Docket Number: No. 88-2747,88-2747
• Parties: 15 Fla. L. Weekly D25 Cecil E. KING, Jr., Appellant, v. ESTATE OF Cecil E. KING, Sr., J.T. Williams, Jr., Co-Personal Representative, Appellee.
• Court: Court of Appeal of Florida (US)

Page 600

554 So.2d 600

15 Fla. L. Weekly D25

Cecil E. KING, Jr., Appellant, v. ESTATE OF Cecil E. KING, Sr., J.T. Williams, Jr., Co-Personal Representative, Appellee.

No. 88-2747.

District Court of Appeal of Florida First District.

Dec. 20, 1989.

Rehearing Denied Jan. 18, 1990.

Fred F. Harris, Jr., of Roberts, Baggett, LaFace & Richard, Tallahassee, for appellant.

Mallory E. Horne, Tallahassee, for appellee.

WENTWORTH, Judge.

Appellant seeks review of a declaratory judgment order by which it was determined that two bank accounts are assets of the estate of appellant's deceased father and do not pass by right of survivorship. We conclude that the court below was entitled to find that the statutory presumption in section 658.56, Florida Statutes, with regard to survivorship accounts, was rebutted by clear and convincing proof of a contrary intent. We further conclude that the court did not err by receiving parol evidence in this regard. We therefore affirm the order appealed.

A co-personal representative of the decedent's estate petitioned for a declaratory judgment as to whether two bank accounts are estate assets, or pass by right of survivorship. Copies of the account signature cards were submitted with the petition. These documents indicate that the accounts were maintained as joint and several accounts in the name of the decedent or appellant, with the further comment "adding son's name to account."

A hearing was held at which appellant, the decedent's two daughters, and the co-personal representative (who is also married to one of the daughters) all testified. The testimony indicated that after the decedent's death appellant and the co-personal representative prepared an initial inventory of the estate. The two disputed bank accounts were listed as estate assets, with no indication of any joint ownership or survivorship right, and appellant did not object to the listing or assert any right to or interest in the accounts. Several months later when a formal inventory was prepared appellant claimed ownership of the larger account, and it was listed as an asset "in dispute." However, at that time appellant still did not assert any interest in the smaller account.

The various witnesses described the decedent as an astute businessman who encountered certain medical problems as he became older. After he paid a bill twice, and received a refund, he became concerned about his ability to manage his own finances and asked one of his daughters to assist him. The daughter did not feel that she would be comfortable managing the complicated transactions, and the decedent then asked the co-personal representative for such assistance. This individual agreed to help with certain financial matters, but believed that it would be more appropriate for a blood relation to be authorized to sign checks for the decedent and suggested that appellant might perform this function.

Appellant agreed to sign the decedent's checks, and they went to the bank together to complete the necessary paperwork. The two disputed accounts, which had been maintained in the decedent's name alone, were then written in the name of the decedent or appellant. Appellant testified that when he inquired as they left the bank the decedent acknowledged that he had created joint accounts. Appellant thereafter sometimes wrote checks for the decedent, and sometimes signed checks which the decedent had written. The only money put into these accounts came from the decedent's funds, and the checking account was used solely for disbursements by the decedent. These disbursements included a monthly amount paid to appellant.

Shortly before his death the decedent convened a family meeting and informed his children as to his various investments and assets. A list was prepared which showed the two bank accounts solely as personal assets, and appellant did not question this description. It was established that when the decedent had previously made occasional gifts of assets to appellant, the decedent would advise his daughters as to such distributions. The daughters indicated that the decedent never expressed an intention to give appellant any interest in the two bank accounts.

After the evidence was presented the court found that section 658.56, Florida Statutes, does not apply to create a presumption of any survivorship interest in the bank accounts since "there is clear and convincing proof it was not the intent ... to make a gift ... or set up a survivorship account...." The court thus concluded that all of the funds in the two contested bank accounts are assets of the decedent's estate.

Section 658.56, Florida Statutes, states that:

(1) Unless otherwise expressly provided ... the opening or maintenance of an account ... in the names of two or more persons ... payable to ... one or more of them or the surviving account holder or holders, all such persons ... shall be presumed to have intended that upon the death of any such person all rights, title, interest, and claim ... shall vest in the surviving account holder or holders.

(2) The presumption herein created may be overcome only by proof of fraud or undue influence or clear and convincing proof of a contrary intent....

Section 658.56 creates a rebuttable presumption that appellant has a survivorship interest in the two bank accounts which were maintained by the decedent in both their names, but this presumption may be overcome by clear and convincing proof of a contrary intent. Insofar as the record presents such proof, the court properly found that the presumption was overcome and section 658.56 does not apply to create any survivorship interest in this case.

The testimony presented below included parol evidence offered to show that the accounts were not intended to pass by survivorship. Such parol evidence generally may not be used to modify the terms of a complete and unambiguous written agreement. See e.g., J.M. Montgomery Roofing Co. v. Howland, 98 So.2d 484 (Fla.1957). However, section 658.56 authorizes such proof in this case with regard to the statutory presumption which may be rebutted by proof of a contrary intent. And since no objection invoking the rule was made below appellant may be deemed to have waived any issue regarding the admissibility of such parol evidence. While appellant now contends on appeal that the rule is one of substantive law, as indicated in Knabb v. Reconstruction Finance Corp., 144 Fla. 110, 197 So. 707 (1940), and Beach Keys Inc. v. Girvin, 213 So.2d 314 (Fla. 1st DCA 1968), this characterization of the rule does not obviate the need for adherence to principles of procedure which require that the issue be presented by an objection in the lower court. Furthermore, we find that even were the issue properly presented below, and the parol evidence rule strictly applied, the notation on the signature cards that the decedent was "adding son's name to account" creates a sufficient ambiguity with regard to this change in the context of this case as to permit the presentation of parol evidence addressing the decedent's intent.

The evidence presented was sufficient to permit the court to determine that there was clear and convincing proof that the decedent sought to create a joint account for the purpose of convenience, without any intent to transfer a survivorship interest to appellant. The court was thus entitled to find that the statutory presumption does not apply, and that the two bank accounts do not pass by survivorship but rather are assets of the decedent's estate.

The order appealed is affirmed.

MINER, J., concurs.

ERVIN, J., dissents with Opinion.

ERVIN, Judge, dissenting.

I cannot agree that parol evidence was admissible to vary the clear and unambiguous terms of the two joint bank accounts which establish the decedent's intention that the surviving tenant would have the right to any remaining funds in the accounts. Alternatively, assuming that the majority is correct in its decision that appellant waived his right to urge the error on appeal by failing to raise a timely objection to the admission of parol evidence, I consider that the extrinsic evidence offered by the estate lacks the clear and convincing character necessary to rebut the presumption that the decedent intended, by opening the two joint bank accounts, to effect a disposition of the property remaining in the accounts, testamentary in nature. I would therefore reverse the order declaring that the two accounts are assets of the estate to be distributed in accordance with the decedent's will. The remainder of this dissent is divided into two parts; the first addresses my position that the lower court erred in admitting parol evidence contradicting the clearly expressed agreements signed by the two joint tenants, and the second, my alternative position.

I.

Initially, I disagree with the majority's conclusion stating that the appellant's failure to make an objection invoking the parol evidence rule waived any issue regarding the admissibility of parol evidence. The majority correctly cites Knabb v. Reconstruction Fin. Corp., 144 Fla. 110, 197 So. 707 (1940), and Beach Keys, Inc. v. Girvin, 213 So.2d 314 (Fla. 1st DCA 1968), for the proposition that the parol evidence rule is a rule of substantive law and not a rule of evidence, in that it has nothing to do with the value of one fact as probative of the existence of another. As a rule of substantive law, the traditional view is that the admission of evidence in violation of the parol evidence rule does not make such evidence competent, even if admitted without objection. 30 Am.Jur.2d Evidence § 1022 (1967). Therefore, a party's objection to the admission of parol evidence is not waived in the absence of a contemporaneous objection. Id. Florida's Evidence Code appears to implicitly recognize this, because the Code is expressly stated to have no effect upon the parol evidence rule. See § 90.103(3), Fla.Stat. Consequently, that portion of the...