Opinion
No. CV 03-0071075S
June 16, 2004
MEMORANDUM OF DECISION
The plaintiff appeals from the decree of the Probate Court for the District of Windham ordering that the proceeds of a joint bank account between the decedent, Homer D. Delorme, and the plaintiff is the property of the decedent's estate. This appeal to the Superior Court is brought pursuant to General Statutes § 45a-186 which provides that any person aggrieved by a decree of a court of probate may appeal to the Superior Court. This court in hearing this appeal does so as a trial de novo of the claim by the defendant against the estate of Homer D. Delorme.
The court finds the following facts.
The plaintiff is the step-daughter of the decedent, Homer Delorme. The decedent relied on the plaintiff for assistance in his affairs, including his bank accounts, after the death of his spouse, the mother of the plaintiff. On August 26, 1997, Mr. Delorme opened a joint account with the right of survivorship with the plaintiff at The Savings Institute and executed the signature card for that account which was later closed on October 12, 1999.
On November 8, 1999, the decedent and the plaintiff opened a second account at The Savings Institute with an initial deposit of $500.00 ("second account"). This, too, was a joint passbook savings account with right of survivorship. The signature card reflects the decedent's name and the signature for him is by the plaintiff with the indication of "POA" after her name, and reflects his social security number as the taxpayer identification number.
In November 1999, the decedent sold real property he owned at 297 Chewink Road, North Windham, Connecticut, to the defendant and the proceeds from the sale were deposited in the second bank account. This bank account remained virtually untouched until his death on December 15, 2001. Shortly after his death, the plaintiff transferred the balance of the account in the amount of $56,015.49 to another account. The defendant then petitioned the probate court to have the balance made part of the decedent's estate and distributed in accordance with the will of the decedent dated December 5, 1983. The probate court found that the money was part of the estate of the decedent and this appeal followed.
General Statutes § 36a-290 states: "(a) When a deposit account has been established at any bank, in the names of two or more natural persons and under such terms as to be paid to any one of them, or to the survivor or survivors of them, such account is deemed a joint account, and any part or all of the balance of such account, including any and all subsequent deposits or additions made thereto, may be paid to any of such persons during the lifetime of all of them or to the survivor or any of the survivors of such persons after the death of one or more of them . . ."
The bank account was opened in both names, although the signature card reflected the plaintiff acting for the decedent by a power of attorney. A Connecticut Statutory Short Form power of attorney was provided to the court at the trial, granting Yvette Ricard power of attorney over all matters concerning Homer Delorme including the power to handle banking transactions. (Plaintiff's Exh. D.) This power of attorney was executed by the decedent on October 19, 1998, and was witnessed by one witness, Diane Potvin and notarized by her as well.
"The execution of a statutory short form power of attorney shall be duly acknowledged by the principal in the manner prescribed for the acknowledgment of a conveyance of real property." General Statutes § 1-43(a). General Statutes § 47-5 provides that conveyances of real property are to be in writing, signed by the grantor, acknowledged by the grantor to be his free act and deed, and attested to by two witnesses. This power of attorney only had one witness and thus was not executed in accordance with the statutory requirements and would appear to be invalid. However, General Statutes § 47-36aa provides for the validation of conveyancing defects of instruments recorded after January 1, 1997, in order to validate those instruments made for the purpose of conveying, leasing, mortgaging or affecting any interest in real property recorded after January 1, 1997, which instruments contains a defect, such as the instrument is attested by one witness only. The defect contained in this power of attorney, namely the presence of only one witness, is cured by the validating statute because the power of attorney was executed "in the manner prescribed for the acknowledgment of a conveyance of real property." General Statutes § 1-43(a). The second joint bank account opened by the decedent with the plaintiff was a valid account owned by the decedent with the plaintiff with the right of survivorship.
General Statutes § 36a-290(b) goes on to state: "The establishment of a deposit account . . . which is a joint account . . . is, in the absence of fraud or undue influence, or other clear and convincing evidence to the contrary, prima facie evidence of the intention of all of the named owners thereof to vest title to such account including all subsequent deposits and additions made thereto, in such survivor or survivors, in any action or proceeding between any two or more of the depositors, respecting the ownership of such account or its proceeds."
There was no evidence of any fraud or undue influence. The establishment of the second joint bank account is prima facie evidence of the decedent's intention to vest title to such account in the survivor, namely the plaintiff. The appeal is sustained and the decree of the court of probate for the District of Windham is set aside.
Swienton, J.