IN RE: the ESTATE OF Helen L. ZANCONATO. (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The executrix of Helen L. Zanconato's estate, Anita Norton, appeals from an order requiring her to transfer the contents of various joint bank accounts to the estate.² Norton also appeals an order denying her request for a new trial. We affirm.

Discussion. Typically, the naming of an additional account holder to a bank account “operate[s] as a present and complete gift in joint ownership if [the owner] clearly intended such a result.” Coolidge v. Brown, 286 Mass. 504, 507 (1934). Where such a joint bank account has been “created only as a matter of convenience,” Burns v. Paquin, 345 Mass. 329, 331 (1963), however, it does not establish the requisite intent. See Miles v. Caples, 362 Mass. 107, 114 (1972) (showing that account was created solely for convenience refutes presumption that decedent intended completed gift).

Whether a joint account operates as a completed gift such that it passes outside of probate “is a ‘pure question of fact’ that turns on the donor's intent.” Gershaw v. Gershfield, 52 Mass. App. Ct. 81, 93 (2001), quoting Desrosiers v. Germain, 12 Mass. App. Ct. 852, 856 (1981). On review, “we accept the judge's findings of fact unless they are clearly erroneous.” U.S. Bank Nat'l Ass'n v. Schumacher, 467 Mass. 421, 427 (2014).

Here, the judge found that the “[d]ecedent did not intend to make a gift of the money in the joint accounts to Anita [Norton] at the time her name was added to the accounts, or at any time thereafter.” Norton asserts that, because the evidence was in equipoise, the trial judge improperly shifted the burden to her to prove that the accounts were intended as a gift. We disagree. The trial judge properly placed the burden where it belonged, on Linda Ewing (Norton's sister and the challenger to Norton's ownership of the account), when he explicitly stated that “Linda [Ewing] bears the burden of proving that Decedent did not have the donative intent to create joint accounts with rights of survivorship in Anita [Norton].” See Blanchette v. Blanchette, 362 Mass. 518, 524 (1972) (“the burden of proof is on the person seeking to show that the transaction is not to be taken at face value”).

Furthermore, it does not appear that the facts were in equipoise. Rather, Ewing carried her burden by presenting evidence that (1) the decedent never told Norton the accounts were a gift, (2) Norton was reimbursed by the decedent for any tax liabilities that were incurred on interest from the account, (3) Norton admitted on multiple occasions that the accounts were used by Norton to pay the decedent's bills and to take care of the decedent and (4) after the decedent's death, Norton told her siblings about the accounts and stated further that “depending on how [her siblings] treated her, she would share.” Thus, the trial judge did not err in concluding that the decedent added Norton to the accounts as a mere convenience without an intent that the accounts would operate as a completed gift.³ See Miles, 362 Mass. at 114 (joint accounts deemed created for convenience where accounts used for care and support of decedent). It follows then that judge's decision to order that the accounts be included in the decedent's estate was also proper. See id. at 115 (concluding that money in joint account belonged to decedent's estate because there was no evidence that decedent had added another account holder with intent to make present and completed gift).

Norton's remaining argument that the trial judge abused his discretion in denying the motion for new trial lacks merit. It is undisputed that Norton's motion was more than ten days after the judgment entered and not timely. See Mass. R. Civ. P. 59 (b), 365 Mass. 827 (1974) (“A motion for a new trial shall be served not later than 10 days after the entry of judgment”). Accordingly, there is no error in its dismissal.⁴

Orders requiring executrix to transfer various joint bank accounts to estate and denying request for new trial affirmed.

FOOTNOTES

2.   In addition, the order required Norton to reimburse the estate for a portion of the attorney's fees. Norton makes no arguments regarding the reimbursement on appeal.

3.   Any claim that the judge's finding was clearly erroneous also fails. “A finding is clearly erroneous when there is no evidence to support it, or when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). Here, the judge's finding was amply supported by the evidence, and we see no reason to disturb it.

4.   To the extent Norton also contends that the judge should have construed the new trial motion as a motion for relief from judgment or otherwise, such claims “have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).