Wright v. Bloom - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

	ROMINGER LEGAL
		Ohio Court Cases and Opinions - Ohio Legal Research
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -RESEARCH

This court case was taken from the web sites of the Ohio Courts. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

OPINIONS OF THE SUPREME COURT OF OHIO
The full texts of the opinions of the Supreme Court of Ohio
are being transmitted electronically beginning May 27, 1992,
pursuant to a pilot project implemented by Chief Justice Thomas
J. Moyer.
Please call any errors to the attention of the Reporter's
Office of the Supreme Court of Ohio. Attention: Walter S.
Kobalka, Reporter, or Deborah J. Barrett, Administrative
Assistant. Tel.: (614) 466-4961; in Ohio 1-800-826-9010. Your
comments on this pilot project are also welcome.
NOTE: Corrections may be made by the Supreme Court to the
full texts of the opinions after they have been released
electronically to the public. The reader is therefore advised to
check the bound volumes of Ohio St.3d published by West
Publishing Company for the final versions of these opinions. The
advance sheets to Ohio St.3d will also contain the volume and
page numbers where the opinions will be found in the bound
volumes of the Ohio Official Reports.

Wright et al., Appellees, v. Bloom et al., Appellants.
[Cite as Wright v. Bloom (1994), Ohio St.3d .]
Probate -- Joint and survivorship accounts -- Survivorship rights
to sums remaining on deposit at death of depositor not
defeated by extrinsic evidence that decedent did not intend
to create in surviving party a present interest in the
account during decedent's lifetime -- Opening of account is
conclusive evidence of intention to transfer to surviving
party a survivorship interest in balance remaining in
account at death -- Effect of opening joint account without
survivorship provision.
- - -
1. The survivorship rights under a joint and survivorship
account of the co-party or co-parties to the sums
remaining on deposit at the death of the depositor may not
be defeated by extrinsic evidence that the decedent did not
intend to create in such surviving party or parties a
present interest in the account during the decedent's
lifetime.
2. The opening of a joint and survivorship account in the
absence of fraud, duress, undue influence or lack of
capacity on the part of the decedent is conclusive evidence
of his or her intention to transfer to the surviving party
or parties a survivorship interest in the balance remaining
in the account at his or her death. (In re Estate of
Thompson [1981], 66 Ohio St.2d 433, 20 O.O.3d 371, 423
N.E.2d 90, paragraph two of the syllabus, overruled.)
3. The opening of a joint or alternative account without a
provision for survivorship shall be conclusive evidence, in
the absence of fraud or mistake, of the depositor's
intention not to transfer a survivorship interest to the
joint or alternative party or parties in the balance of
funds contributed by such depositor remaining in the account
at his or her death. Such funds shall belong in such case
exclusively to the depositor's estate, subject only to
claims arising under other rules of law. (Bauman v. Walter
[1953], 160 Ohio St. 273, 52 O.O. 172, 116 N.E.2d 435,
overruled in part).

(Nos. 93-640 and 93-735 -- Submitted April 20, 1994 --
Decided July 20, 1994.)
Appeal from and Certified by the Court of Appeals for Summit
County, No. 15665.
This is an action to determine the disposition of the money
remaining in three joint accounts following the death of the
depositor.
William C. Bloom died testate on August 30, 1983. Prior to
his death, William transferred his personal bank and credit union
accounts into three joint accounts with his brother, appellant
Raymond Bloom. The signature cards on two of the accounts
recited that the account is owned jointly, or payable to either,
with rights of survivorship. The signature card on the third
account, with TransOhio Savings Bank, indicates only that it is
governed by "Account Rules and Regulations," which were not made
part of the record.
In his last will and testament, William bequeathed specific
sums of money to each appellee--Louise Wright, Gary Wright and
William Evans. Raymond was appointed executor of his deceased
brother's estate. The three accounts were not included in the
inventory of the estate; the money from one of the accounts was
transferred into a joint and survivorship account in the names of
Raymond and his wife, appellant Gloria Bloom. There were
insufficient estate assets with which to satisfy the specific
monetary bequests to appellees.
On June 5, 1991, appellees filed a complaint for declaratory
judgment in the Summit County Court of Common Pleas, Probate
Division. The complaint sought a determination that the funds
remaining in the three joint accounts at William's death belonged
to his estate. Thereafter, appellees filed a motion for summary
judgment. They argued that the "joint accounts were created as a
matter of convenience in handling William Bloom's business
affairs; that Raymond Bloom did not contribute any of his own
funds to the accounts, and was forbidden from taking any funds
out of the accounts for his own use; that William Bloom retained
possession of the passbooks for the accounts until his death; and
that Raymond's interest in the accounts did not vest until the
death of William C. Bloom. Thus, it is clear that William C.
Bloom did not intend to create a present, vested interest in the
joint accounts in Raymond Bloom at the time the joint accounts
were opened. Therefore, *** the funds comprising the joint
accounts are properly assets of The Estate of William C. Bloom
and should be included in the inventory of said Estate."
The probate court granted appellees' motion for summary
judgment, finding that where "a survivorship interest has been
demonstrated but no present interest has been shown, the estate,
as a matter of law, is entitled to proceeds of a joint and
survivorship account."
The court of appeals affirmed the judgment of the probate
court. The court found that although William and Raymond Bloom
established "joint *** accounts with the right of survivorship in
Raymond's name *** there was clear and convincing evidence that
William had no intent to transfer a present interest in the funds
to Raymond." The cause is now before this court pursuant to the
allowance of a motion to certify the record. (Case No. 93-640.)
In a subsequent journal entry, the court of appeals certified the
record in this case to this court pursuant to Section 3(B)(4),

Article IV of the Ohio Constitution for review and final
determination, finding that its decision was in conflict with
that pronounced by the Eighth District Court of Appeals in
Corrigan v. Coughlin (1983), 11 Ohio App.3d 176, 11 OBR 268, 463
N.E.2d 1258. (Case No. 93-735.)

Young & McDowall, Dean A. Young and Laura K. McDowall, for
appellants.
L. James Harkins, for appellees.

Alice Robie Resnick, J. The question certified "is whether
the creator of a joint and survivor account must intend to
transfer a present interest as well as a survivorship interest in
the account to the other party named on the account."
The question certified is a facet of a broader issue which
this court has endeavored to resolve since the early part of this
century: How to stabilize the relationships of parties to joint
and survivorship accounts. The joint and survivorship account is
generally utilized by owners of choses in action either for
financial convenience during their lives or as a non-probate
device to dispose of their property at death while retaining some
measure of control during their lives. Over the years, the court
has sought to provide a clear statement as to the formal
requisites and concomitant legal ramifications of opening a joint
and survivorship account, particularly in regard to survivorship
rights. Recent cases have created a morass of unpredictability,
often occasioned by ambiguous and conflicting results.
Presently, the depositor cannot rest assured as to whether the
funds remaining in the account at his death will immediately pass
to the survivor. Identical survivorship language expressly set
forth in one joint and survivorship account agreement may be
adjudged sufficient to pass ownership to the survivor while found
to be insufficient in another. This has led to resolution of
this issue on a case-by-case basis involving protracted
litigation, time, and great expense.
This court first recognized the validity of the joint and
survivorship account in Cleveland Trust Co. v. Scobie (1926), 114
Ohio St. 241, 151 N.E. 373. It was explained that "[v]iewing the
transaction as a testamentary disposition, it of course lacks the
requisites of a valid will; and viewing it as a gift, it may be
questioned whether the delivery essential to constitute a
completed gift was present." Id. at 246, 151 N.E. at 375. The
court elected to give legal identity to such an account on the
basis of contract law principles.
"*** [U]pon deposit of an account the bank is constituted a
debtor, and when the depositor orders the bank to pay himself or
another upon order of either party, notifies the second party of
the completed transaction and secures her signature evidencing
assent to the arrangement, he has created in the second party by
contract a joint interest in his right to the deposit equal to
his own." Id. at 253, 151 N.E. at 377.
Under this view, the determinative question "is not whether
[the depositor] made a gift of the fund in specie, but whether he
created in [the other party] a joint interest in the deposit
equal to his own." Id. at 247, 151 N.E. at 375.
Such an interest was created by the account notwithstanding
"that withdrawals and deposits were made only by the [depositor],

and no deposits or withdrawals whatever were made by [the other
party] during [the depositor's] life. In other words [the
depositor] exercised control of the account up to the time of his
death." Id. It was found that a joint equal interest was
created by virtue of the fact that the account agreement
authorizes the other party to "withdraw all or any part of the
funds upon deposit at any time during [the depositor's] life."
Id. at 248, 151 N.E. at 375. Thus, the depositor had created by
contract a present joint interest in the other party equal to his
own, notwithstanding that full enjoyment of the account funds
were postponed until the depositor's death. Id. at 248, 251, 151
N.E. at 375, 376.
The question that remained after Scobie was whether the
opening of the account in joint and survivorship form would be
conclusive as to the rights of the surviving party to the balance
of the funds remaining in the account upon the death of the
depositor. The court held that in order for the surviving party
to be entitled to the balance of the account upon the death of
the depositor, the record must show "that the depositor intended
to transfer to the person to whom he made the account jointly
payable a present joint interest therein equal to his own." Id.
at syllabus. It was unclear, however, what role, if any, the
introduction of evidence extrinsic to the contract would play in
determining the depositor's intent.
Subsequent to Scobie, the court continued to identify joint
and survivorship accounts as contractual in nature. Our earlier
cases recognized that upon the opening of such an account, the
right of survivorship vests in the joint parties by virtue of
contract and, when the creator dies, the surviving party or
parties have a right to the balance remaining in the account to
the exclusion of the decedent's estate. Sage v. Flueck (1937),
132 Ohio St. 377, 7 N.E. 2d 802, paragraphs one and three of the
syllabus. Such right, arising as it does by virtue of contract,
could not be defeated by extrinsic evidence that the depositor's
intent was other than clearly expressed in the account contract
or signature card. Id. at 383, 7 N.E.2d at 805; Oleff v. Hodapp
(1935), 129 Ohio St. 432, 438, 2 O.O. 409, 412, 195 N.E. 838,
841. Further, the right of the surviving party to the funds
remaining on deposit at the death of the depositor was not
predicated on his having been a signatory to the account
agreement. Rhorbacker v. Citizens Bldg. Assn. Co. (1941), 138
Ohio St. 273, 20 O.O. 336, 34 N.E.2d 751.
This court has carefully distinguished two situations in
which extrinsic evidence could play a part in determining creator
intent. The first situation involved controversies inter vivos.
In Union Properties, Inc. v. Cleveland Trust Co. (1949), 152 Ohio
St. 430, 434-435, 40 O.O. 425, 427-428, 89 N.E.2d 638, 641, it
was explained that "in controversies *** involving the deposit
and arising during the joint lives of the depositors, the form of
the deposit should not be treated as conclusive on the subject of
joint ownership and the door should be opened to evidence that
the deposit was in truth made and maintained on a different
basis. In other words, the 'realities of ownership' may be
shown."
The second situation involved survivorship disputes over
funds remaining in an account that was opened without
survivorship language. In Bauman v. Walter (1953), 160 Ohio St.

273, 52 O.O. 172, 116 N.E. 2d 435, it was held that upon the
death of the creator of such an account, the surviving party had
no right to any part of the funds remaining on deposit "where
there is no evidence that any passbook for the deposit had been
delivered to the surviving party with intent to pass title to the
deposit." Id. at syllabus. In so holding, it was found that an
"either *** or" or "alternative" account, without survivorship
language, is ambiguous with regard to whether the surviving party
or the decedent's estate is entitled to the remaining funds. We
carefully distinguished such accounts from the joint and
survivorship account which "could, on the death of one of the two
alternative obligees, be only a contract to pay the surviving
obligee. Without disregarding the words of the contract, [the
joint and survivorship account] could not possibly be construed
as a contract to pay either the surviving obligee or the personal
representative of the deceased obligee." (Emphasis added.) Id.
at 277, 52 O.O. at 174, 116 N.E.2d at 438.
At this juncture, we had clearly recognized the joint and
survivorship account as a viable non-probate mechanism by which a
person may transfer property at death without having to give it
away during his lifetime. By applying the parol evidence rule in
post-mortem controversies, we made the opening of the account in
joint and survivorship form conclusive of survivorship rights.
The depositor, therefore, could rest assured that the funds
remaining in the account would, upon his death, immediately pass
to the surviving party to the exclusion of his personal
representative.
In our later cases, however, we changed course regarding the
role that evidence extrinsic to the account terms would play in
determining survivorship rights under a joint and survivorship
account. In Fecteau v. Cleveland Trust Co. (1960), 171 Ohio St.
121, 12 O.O.2d 139, 167 N.E.2d 891, at paragraph three of the
syllabus, we held that the opening of a joint and survivorship
account "is not always conclusive as to the ownership of such
account, and, where a controversy arises as to the ownership of
the account, evidence is admissible in a proper case to show the
true situation." Since Fecteau involved a situation where the
money was withdrawn from the bank account prior to the death of
the depositor, it was unclear whether its holding extended to
controversies arising subsequent to the death of the depositor.
In In re Estate of Svab (1967), 11 Ohio St.2d 182, 40 O.O.2d 166,
228 N.E.2d 609, however, we merged the treatment of controversies
inter vivos and those arising after the depositor's death, and
concluded that "[w]hen the exceptions to the inventory were filed
a controversy arose and it became necessary that evidence be
submitted to the court to establish the 'realities of
ownership.'" Id. at 184, 40 O.O.2d at 168, 228 N.E.2d at 611.
In Svab, we also placed the burden on the surviving party,
who instituted the action by filing exceptions to the inclusion
of the account funds in the inventory of the estate, to "show
that the decedent intended to transfer an interest in the
accounts to her." The court held further that "the bank
signature cards by themselves do not constitute enough evidence
of [such] an intention." Id. at 185, 40 O.O.2d at 168, 228
N.E.2d at 611. Following Svab, however, in a trilogy of cases it
was held that the surviving party is benefited by a rebuttable
presumption, raised by the terms of the account contract, that

the depositor intended to transfer a present, equal interest in
the account; and in the absence of any evidence, this presumption
was sufficient to establish the survivor as the absolute owner of
the account at the depositor's death. Moreover, the depositor's
estate could rebut the presumption with evidence showing that the
realities of ownership are such that no present interest was
created or that no right of survivorship was intended. In re
Estate of Duiguid (1970), 24 Ohio St.2d 137, 53 O.O.2d 328, 265
N.E.2d 287; Steinhauser v. Repko (1972), 30 Ohio St.2d 262, 59
O.O.2d 334, 285 N.E.2d 55; Vetter v. Hampton (1978), 54 Ohio
St.2d 227, 8 O.O.3d 198, 375 N.E.2d 804.
Then, in In re Estate of Thompson (1981), 66 Ohio St.2d 433,
20 O.O.3d 371, 423 N.E.2d 90, syllabus, we changed the burdens
and presumptions as follows:
"1. A joint and survivorship account belongs, during the
lifetime of all parties, to the parties in proportion to the net
contributions by each to the sums on deposit, unless there is
clear and convincing evidence of a different intent.
"2. Sums remaining on deposit at the death of a party to a
joint and survivorship account belong to the surviving party or
parties as against the estate of the decedent unless there is
clear and convincing evidence of a different intention at the
time the account is created. ***"
In creating these new presumptions, we adopted Sections
6-103(a) and 6-104(a) of the Uniform Probate Code. Id. at
438-439, 20 O.O.3d at 374-375, 423 N.E.2d at 94. The Comments to
these sections reveal that the collective assumption underlying
these presumptions is that the average depositor utilizes the
joint and survivorship account as a non-probate device to dispose
of his property at death while retaining control over such
property during his lifetime. 8 U.L.A., Uniform Probate Code
(1983), at 524, 526.
Recognizing that "[u]nder a strict contractual analysis, he
[the depositor] could not do both," id. at 436, 20 O.O.3d at 373,
423 N.E.2d at 93, the court sought a way around "the rigid
contractual analysis of our earlier cases." Id. at 437, 20
O.O.3d at 374, 423 N.E.2d at 93. This was accomplished by
reversing the court's previous position that the bank protection
statutes were enacted solely for the benefit and protection of
financial institutions. The court then held that these statutes
"implicitly permi[t] use of such accounts to transfer property at
death even though such transfers are not pursuant to a
testamentary disposition." Id.
The court adopted the presumptions embodied in the Uniform
Probate Code over the previous presumptions because earlier case
law "failed to distinguish between the treatment of such accounts
during the parties' lifetimes and the treatment of such accounts
after the death of a party ***." Id. at 438, 20 O.O.3d at 374,
423 N.E.2d at 94. Instead of returning to the previous inter
vivos/survivorship dichotomy, under which extrinsic evidence was
admissible in controversies arising during the joint lives of the
parties but not in survivorship cases, separate rebuttable
presumptions were created. Yet, in illustrating how those
presumptions would apply, again the court merged the treatment of
such accounts. The court indicated that in cases involving the
right of survivorship, it is "essentially in accord with creator
intent and the Uniform Probate Code [to require] an intent to

transfer a present interest, as well as a survivorship interest.
*** [E]vidence of the 'realities of ownership' can be used to
rebut the presumption of survivorship which we have adopted from
Section 6-104(a) of the Uniform Probate Code and of course would
buttress the [ownership during lifetime] presumption adopted from
Section 6-103(a)." Id. at 439, 20 O.O.3d at 375, 423 N.E.2d at
95.
It is not surprising, therefore, that following Thompson,
courts of appeals disagreed on whether survivorship rights could
be defeated by evidence that the depositor intended not to create
a present interest in the co-party to the joint and survivorship
account. See Corrigan, supra (overruling assignment of error
based on the argument that there must be a present vested
interest in the survivor). See, also, Pontius v. Nadolske
(1989), 65 Ohio App.3d 522, 584 N.E.2d 1228 (holding that the
estate may overcome survivorship presumption by showing that no
present interest was created).
The question certified in the case sub judice, properly
construed under Thompson, is whether the rights of a surviving
party to the funds remaining in a joint and survivorship account
at the depositor's death can be defeated by evidence, extrinsic
to the account contract, that the depositor did not intend to
create the surviving party a present interest in the account. We
answer this question in the negative, and find the depositor's
intent to transfer a present interest in a joint and survivorship
account to be irrelevant in a controversy involving the rights of
a surviving party to the sums remaining in such account at the
death of the depositor.
We hold that survivorship rights under a joint and
survivorship account of the co-party or co-parties to the sums
remaining on deposit at the death of the depositor may not be
defeated by extrinsic evidence that the decedent did not intend
to create in such surviving party or parties a present interest
in the account during the decedent's lifetime.
To hold otherwise would defeat the assumptions that underlie
Sections 6-103(a) and 6-104(a) of the Uniform Probate Code, and
render the presumptions created thereby internally inconsistent.
The presumption of ownership during lifetime serves to establish
the depositor's intention to retain control over the funds he or
she deposits in a joint and survivorship account. Yet, despite
this fact, the survivorship presumption serves to establish the
surviving party's right to the sums remaining on deposit at the
depositor's death as against the estate of the depositor. Thus,
the presumptions are designed to enforce the rights of the
survivor while at the same time allowing the depositor to retain
control over the account during his or her lifetime. It is
inconsistent with this design to allow the surviving party's
rights to be defeated by the very same evidence of depositor
control that is assumed in the lifetime presumption. Further,
this comports with our statement in Cork v. Bray (1990), 52 Ohio
St.3d 35, 38, 555 N.E.2d 936, 939, that "[i]n the present
[survivorship] case, the only issue is whether appellant met her
burden by presenting clear and convincing evidence that [the
depositor] did not intend to leave the account funds to the named
survivor *** but instead opened the account solely for her
convenience, intending the funds to remain in her estate at her
death." (Emphasis added.)

This holding by itself, however, would do little to ensure
predictability of survivorship rights under a joint and
survivorship contract. An examination of the foregoing cases
reveals that the same evidence that was used prior to Thompson to
establish the necessary incidence of control to defeat the
presumption of a present, equal interest, would also be used to
establish a showing of convenience to defeat the presumption of
survivorship rights. There is no cogent distinction between an
account created for the purpose of aiding the depositor who
suffers from bad vision, which led to the defeat of survivorship
rights in Svab, supra, and one created to aid the depositor who
suffers from an injury, which led to a finding that there was no
intent to transfer a present, equal interest in Union
Properties, supra. See, also, Thompson, supra, at 439, 20
O.O.3d at 375, 423 N.E.2d at 95; Cork, supra, at 38, 555 N.E.2d
at 939. Thus, if in determining survivorship rights, we were to
eliminate the use of extrinsic evidence regarding the intent of
the depositor to create a present interest, but retain its use to
determine intent with regard to the transfer of a survivorship
interest, we would still be making the same evaluations.
If there is one thing that is clear from reviewing the
foregoing cases, it is that our efforts to determine survivorship
rights by a post-mortem evaluation of extrinsic evidence of
depositor intent are flawed to the point of offering no
predictability. Regardless of the depositor's true motivation in
opening a joint and survivorship account, he or she simply cannot
be certain of how his or her lifetime actions will be construed
in regard to transferring survivorship rights. Only when the
depositor knows that the terms of the contract will be conclusive
of his or her intent to transfer a survivorship interest, will
the depositor be able to make an informed choice as to whether to
utilize the joint and survivorship account.
Other jurisdictions faced with providing a legal identity
for the joint and survivorship account have faced many of the
same metamorphic disturbances that we have faced. Those without
specific statutes have endeavored to fit the transaction into a
number of accepted common-law techniques for transferring
property. In much the same way as trying to fit a round peg into
a square hole, courts have utilized theories of gift, contract,
trust, and joint tenancies. Those with bank protection statutes
have oscillated between construing them to have been enacted
solely for the bank's protection or effecting the rights of the
parties to a joint and survivorship account. Those with special
statutes have held the rights of parties to range from
presumptively established to conclusively established. Slowly
and unevenly, through various gradations of evolution, courts
have moved toward the inevitable realization that the joint and
survivorship bank account has its own identity unconforming to
any hitherto recognized common-law methods of transferring
property. Kepner, The Joint and Survivorship Bank Account--A
Concept Without a Name (1953), 41 Cal.L.Rev. 596; Kepner, Five
More Years of the Joint Bank Account Muddle (1959), 26 U.Chi.
L.Rev. 376, Comment, The Validity of Joint Tenancy Bank Accounts
as Non-Probate Devices (1989), 17 Capital U.L.Rev. 571;
Annotation, Creation of Joint Savings Account or Savings
Certificate as Gift to Survivor (1972), 43 A.L.R.3d 971.
The need for uniformity is essential. "A depositor who

opens such an account ought to be able to know, with some degree
of certainty, that certain consequences will arise from the
creation of the account in an established manner." Kepner, The
Joint and Survivorship Bank Account, supra, at 635. Since
"'[s]urvivorship is the distinctive characteristic and the grand
incidence of'" a joint and survivorship account, Eastman v.
Mendrick (1975), 218 Kan. 78, 82, 542 P.2d 347, 350, quoting
Johnson v. Capitol Fed. S. & L. Assn. (1974), 215 Kan. 286, 524
P.2d 1127, paragraph three of the syllabus, it is imperative that
the depositor know that the opening of such an account is
conclusive of his intent to transfer a survivorship interest.
In reaching this conclusion, we are not unmindful of our
previous position that it is necessary to retain the presumption
of survivorship in rebuttable form because such "accounts are not
necessarily the most desirable means of effectuating intent."
Thompson, supra, at 437, 20 O.O.3d at 374, 423 N.E.2d at 94.
This position is based on the recognition that "'[t]hese accounts
are frequently litigated. *** All too frequently, the parties
*** are not really apprised of all the ramifications that exist
when such a contract is consummated. *** Thus, the end result in
numerous instances, is a defective estate plan that successfully
avoids probate at the cost of litigation, great expense,
disruption of the deceased's intention and hardship to his
family.'" (Emphasis sic.) Id. at 437-438, 20 O.O.3d at 374, 423
N.E.2d at 94, quoting Vetter, supra, at 233-234, 8 O.O.3d at 202,
375 N.E.2d at 808, Locher, J., concurring.
This argument, however, serves to perpetuate uncertainty and
confusion where uniformity is needed. The uncertainty exists by
virtue of the fact that the joint and survivorship account is
utilized to achieve antithetical results with regard to
survivorship rights. In other words, these accounts are opened
by depositors who do not intend to bestow the right of
survivorship on the surviving party, as well as by depositors who
do intend to bestow such right of survivorship. Permitting the
use of extrinsic evidence to show the true intent of the creator,
however, serves only to perpetuate this confusion. It sanctions
the use of joint and survivorship accounts by those who do not
intend to transfer survivorship rights, thus encouraging the very
evils of misinformation and litigation sought to be avoided. On
the other hand, were the creation of such an account to be
conclusive of survivorship rights, there would be no need to go
beyond the account contract to ascertain the creator's intent.
Those who desired to open an account for convenience only,
without survivorship rights, would be forced to abandon
consideration of the joint and survivorship account.
Such conclusiveness has been accomplished in other
jurisdictions in a variety of ways depending on the theory
utilized. Those jurisdictions utilizing the contract theory have
applied the parol evidence rule to make the form of the account
conclusive of survivorship rights, in the absence of fraud,
duress, undue influence and incapacity. See Estate of Haynes v.
Brayden (Tenn.App.1992), 835 S.W.2d 19; Robison v. Fickle (1976),
167 Ind.App. 651, 340 N.E.2d 824; Estate of Harvey v. Huffer
(1955), 125 Ind.App. 478, 126 N.E.2d 784; Connor v. Temm
(Mo.App.1954), 270 S.W.2d 541. See, also, Annotation, Parol
Evidence Rule as Applied to Deposit of Funds in Name of Depositor
and Another (1954), 33 A.L.R.2d 569, and (1989) Later Case

Service 235; Comment, The Validity of Joint Tenancy Bank Accounts
as Non-Probate Devices, supra, at 586, fn. 118; Kepner, The Joint
and Survivorship Bank Account, supra, at 620, fn. 144.
Under the gift theory, conclusiveness is accomplished under
the following rationale:
"It would seem that when a depositor opens a joint and
survivorship account and executes signature cards which recite
that the account is to be paid to either during the depositors'
joint lives and to the survivor upon the death of either, a
rebuttable presumption of an intent to make a gift of a joint
interest should arise. After the depositor's death only evidence
of fraud, undue influence or lack of capacity should be
admissible to rebut the presumption. It serves no useful social
purpose to encourage litigation concerning the disposition of the
balance of the joint account upon the death of the depositor,
when in most instances he intended, in his unlearned manner, to
make a testamentary disposition of his property. If the joint
and survivorship account is sound, as a means of transferring
property, it should be uniformly administered." Kepner, The
Joint and Surviorship Bank Account, supra, at 621. See, also,
Connor, supra.
Other courts have interpreted the specific statutes enacted
in their respective jurisdictions to provide that the opening of
an account in joint and survivorship form is conclusive of the
rights of the surviving party to funds remaining in the account
upon the death of the depositor. See Doty v. Anderson (1977), 17
Wash.App. 464, 563 P.2d 1307; In re Wszolek Estate (1972), 112
N.H. 310, 295 A.2d 444; Miller v. Roseberry (1958), 120 Vt. 498,
144 A.2d 836; Estate of Green v. Meeker (1955), 46 Wash.2d 637,
283 P.2d 989.
In Kansas, a unique approach is taken, which its courts have
dubbed the "magic words" doctrine. Under this approach, if the
joint and survivorship agreement recites the "magic" words "as
joint tenants with right of survivorship, and not as tenants in
common," then a joint tenancy with the incidents of survivorship
is conclusively established. If those words are not recited,
then the contract is deemed ambiguous and extrinsic evidence of
depositor intent is admissible. The words are garnered from the
joint tenancy statute enacted in that state. Kansas also has a
banking statute which provides for accounts "payable to either or
any of the survivors." K.S.A. 9-1205. This statute has been
construed to be for the bank's protection only. Thus, the words
identified therein are not "magic." Jeschke v. United States
(C.A.10, 1987), 814 F.2d 568, 575; In re Estate of Wood (1976),
218 Kan. 630, 545 P.2d 307; Eastman v. Mendrick, supra; Agrelius
v. Mohesky (1972), 208 Kan. 790, 494 P.2d 1095.
"The theory used to describe the transaction, whether it be
denominated joint tenancy, contract or gift, is meaningful only
for the purpose of defining the method of effectuating the
donation." Kepner, The Joint and Survivorship Bank Account,
supra, at 613. Since in Thompson, supra, at 437, 20 O.O.3d at
374, 423 N.E.2d at 93, we held that our banking statutes
"implicitly permi[t] use of such accounts to transfer property at
death even though such transfers are not pursuant to a
testamentary disposition," there is no longer any need to
denominate the theory upon which the joint and survivorship
account is effectuated in common-law terms. Nevertheless, our

own history has left us best acquainted with the utilization of
contract principles.
We hold that the opening of an account in joint and
survivorship form shall, in the absence of fraud, duress, undue
influence or lack of mental capacity on the part of the
depositor, be conclusive evidence of the depositor's intention to
transfer to the survivor the balance remaining in the account at
the depositor's death. (Thompson, supra, paragraph two of the
syllabus, overruled.)
On the other hand, in order to maintain consistency in the
treatment of survivorship rights, we hold that the opening of the
account in joint or alternative form without a provision for
survivorship shall be conclusive evidence, in the absence of
fraud or mistake, of the depositor's intention not to transfer a
survivorship interest to the joint party in the balance of funds
contributed by the depositor remaining in the account at the
depositor's death. Such funds shall belong exclusively to the
depositor's estate, subject only to claims arising under other
rules of law. (Bauman, supra, overruled in part.)
We stress, however, that today's decision does not change
the ownership-during-lifetime presumption set forth in Thompson,
supra, at paragraph one of the syllabus, utilized in determining
the rights of the parties and others to joint and survivorship
funds in controversies arising during the parties' lifetimes.
Applying today's holdings to the record in this case, we
reverse the decision of the court of appeals and find that the
two accounts containing survivorship language conclusively
establish Raymond Bloom's rights to the balance remaining in
those accounts at the death of his brother, William Bloom.
As to the third account, that opened with TransOhio Savings Bank,
the decision of the court of appeals is reversed and the cause is
remanded to the probate court to determine the existence of
survivorship language in conjunction with this account, and enter
judgment consistent with this opinion.
Judgment reversed
and cause remanded.
Moyer, C.J., Douglas, Wright, F.E. Sweeney and Pfeifer, JJ.,
concur.
A.W. Sweeney, J., dissents.