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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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