Before the Court are two contested proceedings in the estate of Arthur Buxton ("decedent"). In a discovery proceeding (SCPA 2103), April Buxton-Sinclair, the executrix of decedent's estate ("petitioner"), seeks the turnover of certain documents and assets from Angela Buxton Campbell, a granddaughter of decedent ("respondent"), who allegedly controlled decedent's assets during the final six years of his life. In the other proceeding, petitioner seeks an order compelling respondent to account (SCPA 2205) as the de facto fiduciary with respect to decedent's property for the aforementioned period.

In light of the common issues raised therein, the Court consolidated the proceedings for trial (SCPA 501[2][a]), which was conducted before a Court Attorney / Referee. At the trial, petitioner testified on her own behalf, and called as witnesses-in-chief: (i) Kim Buxton-Campell, another granddaughter of decedent and respondent's sister ("Kim"); (ii) Hildreth Cita, a long-time tenant of a rental unit owned by decedent ("Cita"); and (iii) petitioner's spouse. Respondent represented herself, and testified on her own behalf. She produced no other witnesses.

At the close of the trial, all parties waived the filing of the Referee's report, and stipulated to the Court's determination of all issues upon the trial transcript and the documents in evidence (SCPA 506[6][c]). [*2]

Based upon the credible evidence adduced at the trial, the Court hereby directs that respondent account as de facto fiduciary with respect to decedent's assets, for the period of March 1, 1993 through February 28, 1999. Additionally, the Court grants the relief sought in the discovery proceeding, to the extent set forth, infra.

Decedent died testate on May 21, 1999, at age 100. He had been married three times, but was survived solely by grandchildren. In his will, executed in September 1993, he left his estate to four named grandchildren (including petitioner and respondent) and nominated respondent as executrix and petitioner as successor executrix.^[FN1]

Decedent had been a long-time resident and part-owner of 136-138 Remington Place, New Rochelle ("136 Remington"), a multi-family dwelling which generated rental income since as early as the 1960s. He had retired from his position as a laborer with the New York City Housing Department in the late 1960's, and, by all accounts, lived modestly in retirement. According to respondent, decedent had never become accustomed to performing the most mundane household tasks (i.e., shopping, cooking, laundry, cleaning), and had always relied on others to assist him in performing these tasks. Decedent's third wife, Hattie, performed these household tasks, among others, until her death in January 1990. Thereafter, Robert Buxton, decedent's son and respondent's father ("Robert"), assumed the role as decedent's "caretaker" until his death in December 1992. By her own admission, by March 1993, respondent, a long-time health care administrator and doctoral candidate, had become decedent's primary "caretaker", in Robert's stead.

During the 1990's, notwithstanding his need for domestic assistance and several hospitalizations, decedent did not suffer from any debilitating mental or physical ailments. His only notable physical impairment was in executing his signature, due to the fact that his hand was always unsteady or "shaking" when he tried to do so.

As to the handling of decedent's finances in the early 1990's, Robert was principally responsible for assisting decedent with paying his bills and banking. When Robert wasn't available, Cita would occasionally assist decedent with his execution of

As to the extent of decedent's assets prior to Robert's death, testimony and limited bank records produced at the hearing indicate that by October 1992, decedent and Robert were listed as holders of checking/savings account at Marine Midland Bank with proceeds of approximately $187,500.00 ("original Marine Midland account"). Decedent was also receiving monthly income from at least three sources: Social Security payments, pension payments, and the income generated by rents from 136 Remington, including rent from respondent when she resided there in the early 1990's. Petitioner introduced evidence that between March and September 1992, Robert had made numerous withdrawals from the original Marine Midland account for his own use, without decedent's knowledge.

In or around May 1993, respondent and decedent went to Marine Midland bank in New Rochelle and, simultaneously, closed the original Marine Midland account and

opened a checking account and a savings account in their names ("Marine Midland-Checking"; "Marine Midland-Savings", respectively). At that time, these accounts had proceeds of approximately $125,000.00. Also, a Preferred Money Market Account at Citibank was opened, listing respondent and decedent as title holders (Citibank-PMMA"). According to respondent, that account was funded with approximately $75,000.00, taken

As to decedent's sources of income, respondent testified that, during the period in question, she never personally handled any checks or cash proceeds from rent payments, Social Security checks, or pension checks. Instead, decedent received these payments directly, then personally cashed any checks and deposited the cash proceeds, into a "strongbox" he kept at 136 Remington. During the period in question, respondent took possession of the strongbox at her own residence during the few limited occasions when decedent was hospitalized for various ailments. At all other times, the box remained at 136 Remington. Respondent testified that the all cash proceeds, which she described as "stacks of cash", in the strongbox were stolen during a "break-in" which occurred at 136 Remington in 1998.

In January 1999, upon her return from a trip to Florida, respondent testified that decedent was "unhappy" with her for not being with him during the 1998 holiday season, and his relationship with her and his overall physical state worsened as he became more despondent. In March 1999, after decedent had requested petitioner to help him find his will and strongbox, which he believed was missing from 136 Remington, petitioner discovered various documents relating to the Marine Midland and Citibank accounts. Thereupon, petitioner took decedent to both Marine Midland and Citibank [*5]

It is well settled that this Court may deem a person to be a de facto fiduciary, even though he or she never qualified or was authorized to act in a fiduciary capacity, if that person undertook duties and responsibilities ordinarily assumed by a fiduciary (see, Matter of Donner, 82 NY2d 574; Matter of Sakow, 160 Misc 2d 703; Matter of Lasser, NYLJ, June 4, 1986, at 13, col 3). The Court has the authority to require a de facto fiduciary to file an accounting in the best interests of the estate (see, SCPA 2205[1]; Matter of Morrison, 268 AD2d 435, 436) regardless of whether the Surrogate's Court Procedure

The Court has carefully reviewed the competent documentary evidence and testimony elicited at the trial. In light of that testimony and evidence, the Court finds that from as early as March 1993 through as late as February 1999, respondent should be deemed a de facto fiduciary with respect to decedent's personal and financial affairs.

Respondent's claims to the contrary are called into question by the competent evidence and credible testimony adduced at the trial. In general, respondent's credibility was significantly undermined by numerous discrepancies and inconsistencies in her testimony, particularly regarding: (i) her misrepresentation of the timeliness of her payment of decedent's municipal, property and school taxes for 1997-1998; and (ii) her use of her deceased father's [*6](Robert's) Social Security identification number on the application to open Citibank-Investment # 1. In addition, her testimony that she lacked personal

As to the affirmative defenses raised by respondent in both proceedings, to wit: (i) that decedent gifted the bank accounts in question to her and/or that they were joint bank accounts with a right of survivorship, the Court finds them to be without merit. ^[FN3]

As to respondent's contentions that the accounts in question were inter vivos gifts, it is well settled that the alleged donee of a gift has the initial burden to establish, by clear and convincing evidence: (i) intent by the donor to make the transfer; (ii) delivery, either actually or constructively; and (iii) acceptance (see, Gruen v Gruen, 68 NY2d 48; Matter of VanAlstyne, 207 NY 298). However, if the party challenging the gift establishes that a "confidential relationship" existed between the donor and donee, it becomes incumbent upon the donee to establish, by clear and convincing evidence, not only the aforementioned elements, but also that the transfer was voluntary and free from undue influence or restraint imposed by the donee upon the donor (see, Matter of Gordon v Bialystoker Center & Bikur Cholim, 45 NY2d 692). Also, in the event the donee's relationship with the donor is a fiduciary relationship either de jure or de facto, the donee must corroborate the gift in all respects by testimony and evidence elicited from disinterested witnesses (Matter of Corse's Estate, 182 NYS2d 514, affd 13 AD2d 651).

Initially, in light of the testimony elicited at trial with respect to the nature and extent of decedent's dependence upon respondent during the six years in question, the Court concludes that respondent's relationship with decedent amounted to a "confidential relationship" (compare, Matter [*7]of Knight, NYLJ, March 13, 1995, at 29, col. 3 [NY - Preminger] [management of bank account and writing of checks, standing alone, not sufficient to establish confidential relationship]). In any event, upon review of the record, the Court finds that respondent failed to present competent evidence in admissible form

As to respondent's contentions that the accounts in question were joint accounts with right of survivorship, it is settled that when a bank account is opened in two names and specific words of survivorship appear on the signature cards or the ledger creating the account, a rebuttable presumption arises under Banking Law § 675 that the account is held jointly with a right of survivorship (see, Banking Law § 675[b]; Kleinberg v Heller, 38 NY2d 836; Matter of Fenelon, 262 NY 308). In the absence of proof evidencing such language, or an adequate showing under the common law that decedent intended to create a joint tenancy, a presumption arises under EPTL 6-2.2(a) that the account is a tenancy-in-common (see, Matter of Randall, 176 AD2d 1219; Matter of Timoshevich, 133 AD2d 1011). The foregoing presumptions can be overcome with "clear and convincing" evidence that the account was opened for the convenience of the depositor and not with the intention of conferring a beneficial interest on the co-tenant (see, Matter of Donahue, 262 AD2d 840), or that the account was improperly created by reason of fraud, undue influence or lack of capacity (see, Kleinberg v Heller, supra; see generally, Matter of Friedman, 104 AD2d 366, affd 64 NY2d 743). However, where a fiduciary or confidential relationship exists between the co-tenants, the burden of going forward to establish that the decedent knowingly and wilfully intended to create a joint account shifts to the surviving co-tenant (see, Matter of Camarda, 63 AD2d 837, 839).

Upon review of the record, the Court finds that respondent failed to present competent evidence in admissible form to sustain a prima facie showing of her entitlement

to the statutory presumption of right of survivorship under Banking Law § 675 with respect to the accounts in question (see, e.g., Matter of Ancell, 191 Misc 2d 252). Nor was the competent admissible evidence sufficient to establish a common law survivorship account without the benefit of the statutory presumption (cf., Sutton v Bank of New York, 250 AD2d 447; Matter of Butta, 192 Misc 2d 614). Therefore, the second affirmative defense raised in the answer to the compulsory accounting petition and both affirmative defenses raised in the answer to the discovery petition are dismissed, with prejudice.

Moreover, the Court finds that any presumption under EPTL 6-2-2 that respondent is a surviving tenant-in-common of the accounts in question has been adequately rebutted by the proof at trial. In this regard, the record demonstrates: (i) the accounts in question were funded [*8]primarily by decedent's assets; (ii) respondent and decedent stood in a confidential relationship at the time the accounts in question were funded; (iii) petitioner presented adequate proof, in competent admissible form, that the accounts were set up as a matter of convenience; and (iv) a lack of competent, admissible evidence that decedent intended to make a gift of the accounts to respondent (see, Matter of Klecar, 207 AD2d 732; Matter of Timoshevich, 133 AD2d 1001, supra, at 1012).

In light of the foregoing factual findings, the remaining affirmative defenses raised by respondent in the answer to the compulsory accounting petition are dismissed, as moot or meritless. Therefore, the bank accounts in question are to be included in

Accordingly, petitioner's application to have respondent account as de facto fiduciary of decedent's assets is granted. Within 120 days of the date of personal service upon her of the decree to be settled, respondent shall file an account of her proceedings with respect to decedent's assets from March 1, 1993 through February 28, 1999, along with a petition to have said account judicially settled.

Additionally, petitioner's application for discovery is granted, to the extent that within 120 days from the date of personal service upon her of the decree to be settled, respondent shall furnish to the Court all available records, both institutional and personal, for the period March 1, 1993 through February 28, 1999 with respect to: (i) the establishment and monthly administration of the bank and credit card accounts in question [Petition - Paragraph 5, Items (a), (b), (c), (d), and (h)]; (ii) all of decedent's Social Security and pension checks, and rent payments [Petition - Paragraph 5, Items (e), (f), and (g); and (iii) billings and payment receipts from applicable suppliers and utilities for 136 Remington [Petition - Paragraph 5, Items (i)and (j)].

Settle one decree.

Dated:White Plains, NY

October 23, 2003

Decision Date: October 23, 2003