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Estate of Card v. Card

Supreme Court of South Dakota

January 13, 2016

ESTATE OF JACQUELYN CARD, Plaintiff and Appellee,
CURTIS CARD, Defendant and Appellant

Considered on Briefs November 30, 2015


PATRICK M. GINSBACH of Farrell, Farrell & Ginsbach, PC, Hot Springs, South Dakota, Attorneys for plaintiff and appellee.

DAVID L. CLAGGETT of Claggett & Dill Prof., LLC, Spearfish, South Dakota, Attorneys for defendant and appellant.

WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.


Page 87

WILBUR, Justice

[¶1] Decedent opened a savings account in 1989 and, in 2007, included her son and daughter as additional account owners. When decedent passed away in 2012, son withdrew his share of the account balance relying on SDCL 29A-6-104, which provides that the proceeds of a joint account automatically pass to the surviving account holder. The estate brought suit against son to recover the amount he withdrew. The estate asserted that it rebutted the presumption under SDCL 29A-6-104 that the proceeds automatically pass to the surviving account holder because decedent created the savings account for her and her husband's benefit. After a bench trial, the court ruled that the estate rebutted the presumption with clear and convincing evidence that decedent did not intend to create a joint account with right of survivorship. Son appeals. We affirm.

Page 88


[¶2] Jacquelyn Card died on October 28, 2012, in her daughter's home in Virginia. She was survived by her husband Darrell and their four adult children: Curtis, Kathleen, Craig, and David. Jacquelyn and Darrell had been married for 65 years at the time of her death. They lived in various locations throughout their marriage, settling in Hot Springs in 1979. Jacquelyn worked as a teller at a local bank until she retired in 1990. Darrell also worked at a bank, until it sold in 1985.

[¶3] In 1989, Jacquelyn's mother left her a substantial inheritance. The amount of the inheritance is not known. Kathleen testified that she believed it was near $100,000. Curtis claimed Jacquelyn inherited approximately $680,000. Nonetheless, it is undisputed that Jacquelyn placed the inheritance in a savings account separate from Darrell. Darrell had a history of managing money poorly, and Jacquelyn's family described her to be financially conservative. When Jacquelyn created the account in 1989, she asked Curtis if he would place his name on the account with hers. Curtis agreed, and Jacquelyn and Curtis signed a signature card for savings account #1683 at First Western Bank (1989 Account). The signature card did not indicate whether the account was a joint tenancy, trust, or tenancy in common. Curtis testified that his mother wanted his name on the account so " if anything happened to her, that somebody would be on there so the money would flow to them," referring to Darrell and Jacquelyn.

[¶4] In 1994, Jacquelyn executed a Will without the assistance of an attorney. The Will provided:

I give, devise and bequeath unto my children, Curtis L. Card, Kathleen M. Card, Craig A. Card and David A. Card, all my interest in and to all the property of which I die seized, possessed or entitled to, the same to be their sole and absolute property in fee simple forever, be the property real property, personal property, or mixed, in equal and undivided interests, share and share alike, with the stipulation that my husband, Darrell E. Card, have full use, control and enjoyment of the properties and all the income therefrom, during his lifetime.

Also in 1994, Jacquelyn asked Kathleen to act as personal representative for her estate. According to Kathleen, Jacquelyn did not trust Curtis to carry out Jacquelyn's wishes upon her death. Curtis, however, described his relationship with Jacquelyn as " close[.]"

[¶5] In 2007, Jacquelyn and Darrell began spending the colder months in Virginia living with Kathleen. According to Kathleen, Jacquelyn told her that Curtis asked that his name be removed from the 1989 Account so he could avoid potential tax liability. Curtis denied that he ever asked to be removed from the account. Kathleen further claimed that Jacquelyn asked if Kathleen would place her name on the account instead of Curtis. Kathleen agreed, and in October 2007, Kathleen and Jacquelyn executed a new signature card at First Western Bank for savings account #3200001623 (2007 Account). Curtis also executed a new signature card for the 2007 Account. He testified that his mother told him he needed to sign the new card because the bank was assigning a new number to the savings account.

[¶6] The signature card for the 2007 Account designated the account as a joint account with right of survivorship and listed the " Account Holder Name(s):" as " JACQUELYN J CARD, CURTIS CARD or KATHLEEN M CARD." From 2007 until Jacquelyn's death in 2012, Jacquelyn and Darrell continued to spend the ...

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