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Judges differ on application of high court ruling

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An Indiana Court of Appeals judge dissented from his colleagues today in a ruling involving the ownership of certain joint accounts because he believed an Indiana Supreme Court decision was binding in the case.

"If we were writing on a blank slate I would agree with that result. We are not writing on a blank slate," wrote Judge Michael Barnes in his dissent. "As an intermediate appellate court, we must follow precedent set by our supreme court, even if we do not agree with it."

In the case In Re: The estate of Harry L. Rickert, Carole Baker, personal representative v. Keta Taylor, No. 18A04-0812-CV-746, Judge Barnes disagreed with the majority that In Re Estate of Banko, 622 N.E.2d 476, 480 (Ind. 1993), doesn't apply to the instant case. In Banko, the high court noted under the Non-Probate Transfer Act, there is a statutory presumption in favor of the surviving joint account holder, regardless of the relationship between the decedent and survivor. The statutory presumption requires that a party challenging the survivor's rights to the joint account proceeds establish that the decedent did not intend for the survivor to receive the funds.

Keta Taylor took care of Harry Rickert and his wife until their deaths. Before he died, Harry added Taylor as a sixth residuary beneficiary and executed a power of attorney naming her as his attorney-in-fact. After that, she opened 15 certificates of deposit in his name, with herself as joint owner or payable on death to the beneficiary of the accounts. Rickert only signed paperwork related to two of these accounts.

Carole Baker, as personal representative and beneficiary, argued the accounts should be considered property of the estate. The trial court ruled the accounts presumptively belong to Taylor unless the estate could prove "a different intention" on Rickert's part when they were created.

The majority reversed and remanded for further proceedings, because Rickert couldn't have had any intention regarding the ownership of the accounts at his death because he was allegedly incompetent in the last few years of his life when the accounts were made. As such, the statutory presumption of rights of survivorship in the joint account owner or POD beneficiary shouldn't apply, wrote Judge Melissa May. The majority also held Banko doesn't require application of the NPTA statutory presumption in favor of Taylor as POD beneficiary or joint account holder under the facts of the case. It can't be applied where a testator is unaware the accounts are being opened or is incompetent to form the requiste intent that they benefit the survivor, she wrote.

In his dissent, Judge Barnes argued Banko applied to the instant case and the Supreme Court didn't state any exceptions to this rule.

"If our supreme court in Banko was not persuaded to reverse a trial court's judgment that a joint account survivor was entitled to the account, even where there was clear evidence the decedent was incapacitated when some of the transactions occurred, I conclude we should not reverse the trial court's judgment in this case, where the evidence is less clear regarding Rickert's incapacity or when it might have occurred in relation to when the joint accounts were opened," he wrote.

Judge Barnes urged the Supreme Court to reconsider Banko's breadth given that an unscrupulous caregiver could take advantage of someone and get joint tenancy of accounts; he also urged the General Assembly to enact legislation that would exempt situations such as the one in this case from the NPTA's action.

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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