Serpa v. North Ridge Bank

• Decision Date: 21 June 1989
• Docket Number: No. 88-0009,88-0009
• Citation: 547 So.2d 199,14 Fla. L. Weekly 1495
• Parties: 14 Fla. L. Weekly 1495 Lillian SERPA, Appellant, v. NORTH RIDGE BANK, Appellee.
• Court: Florida District Court of Appeals

Page 199

547 So.2d 199

14 Fla. L. Weekly 1495

Lillian SERPA, Appellant, v. NORTH RIDGE BANK, Appellee.

No. 88-0009.

District Court of Appeal of Florida Fourth District.

June 21, 1989.

Rehearing Denied Aug. 31, 1989.

Catherine Rafferty of Miller, Squire & Rafferty, Chartered, Fort Lauderdale, for appellant.

Michael Beraha of Kross, Rader & Beraha, P.A., Boca Raton, for appellee.

HERSEY, Chief Judge.

The issue we are asked to review is whether a will revoked a Totten trust.

In 1980, Efrain Ramos opened a savings account with North Ridge Bank. The signature card indicates the title of this account as "RAMOS, EFRAIN I/T/F LILLIAN RAMOS." Appellant, Lillian Serpa, formerly Lillian Ramos, is the daughter of Efrain Ramos.

Efrain Ramos died in 1982, leaving a will executed after the account was established, and providing, in pertinent part:

Fourth: all the rest, residue and remainder of my estate, real, personal or mixed, whatsoever situated, of which I may be or become entitled including stock ownership, my home, bank accounts, certificates of deposit, time-sharing arrangements, I give to my brother, Eddie Ramos, which he will distribute to his sole discretion to my family I may have in Puerto Rico, and to my daughter Lillian Ramos.

Upon request of the attorney for the estate of Efrain Ramos, the bank paid over to the estate the contents of the account in question, as well as an amount in a checking account owned by the decedent.

Appellant eventually learned of the existence of the savings account and the manner of its disposition. Her suit against the bank for breach of contract and negligence resulted in an unfavorable final judgment from which she appeals.

The judgment itself is silent as to the reasoning underlying the trial court's decision. At the conclusion of the hearing, however, the trial judge explained his rationale in the following language:

Here, I rule for the bank, because I otherwise would presume that the decedent at the moment he made his Will, was incompetent. A person who makes a Will, and when he makes a Will, and if he's competent, and knows and understands the bounty of his labors and the people to whom he wants that bounty to pass upon his death. (sic)

So, the specific language of the Will making reference to bank accounts combined with the presumption that the decedent was competant (sic) at the time he made the Will gives rise to the presumption in this Court's mind that he knew of the intrust (sic) status of the bank account and decided to revoke it by making the Will. This is not to say that every Will revokes a Totten Trust. If the residue clause had said I give, devise, the rest, residue and remainder of my estate, you would have been in trouble. But, here, the specific reference to the bank accounts is enough to lead this Court to believe that that accompanied with the presumption of competency of the decedent that he knew what the account was in existence. He knew the condition of the account being one in trust for that. He sought to specifically revoke that status and that account passed under his Will and into his estate.

Placing a bank account in the name of one individual "in trust for" another individual creates a tentative or Totten trust. Such a trust is tentative because partial revocation occurs every time there is a withdrawal, and the trust is revocable during the lifetime of the depositor/settlor. See In re Totten, 179 N.Y. 112, 71 N.E. 748 (1904). The Totten trust is cognizable in Florida, both as a product of the common law, Seymour v. Seymour, 85 So.2d 726 (Fla.1956), and as a legislatively permissible device, section...