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Wakim v. Pavlic

Supreme Court of West Virginia

September 21, 2017

JEANNETTE WAKIM, as personal representative of the Last Will and Testament of Lawrence J. Belt, Defendant Below, Petitioner
v.
CHRISTOPHER PAVLIC, as personal representative of the Last Will and Testament of Lila Belt, Plaintiff Below, Respondent

          Submitted: September 13, 2017

         Appeal from the Circuit Court of Ohio County The Honorable Ronald E. Wilson, Judge Civil Action No. 13-C-89

         REVERSED AND REMANDED

          Robert G. McCoid, Esq. McCamic, Sacco & McCoid, PLLC Wheeling, West Virginia Paul J. Harris, Esq. Shawn L. Fluharty, Esq. Harris Law Offices Wheeling, West Virginia Counsel for the Petitioner

          Elgine Heceta McArdle, Esq. McArdle Law Office Wheeling, West Virginia Counsel for the Respondent

         SYLLABUS BY THE COURT

         1."A joint tenancy is created in money deposited in a bank in the names of two or more persons, 'in form to be paid to either, ' under Code, 31-8-23 [currently W.Va. Code, 31A-4-33], and the same may be withdrawn by any of the persons so named. In the event of the death of one or more of such depositors, a sole survivor is entitled to the entire amount remaining in such deposit." Syl., Lett v. Twentieth Street Bank, 138 W.Va. 759, 77 S.E.2d 813 (1953).

         2."Prior to the death of a donor depositor, a rebuttable presumption exists under the provisions of Code, 1931, 31A-4-33, as amended, that the ownership of the funds is joint, a presumption which may be overcome by competent evidence." Syl. pt. 3, Dorsey v. Short, 157 W.Va. 866, 205 S.E.2d 687 (1974).

          Ketchum, Justice.

         This appeal concerns the disposition of funds withdrawn from joint bank accounts owned by Lawrence Belt and Lila Belt during their marriage. The funds were withdrawn from the joint accounts by Lawrence. Several months after the withdrawals, Lila filed for divorce but died while the divorce action was pending. The divorce action was dismissed with prejudice and without any rulings regarding any marital property. Lawrence died thereafter.

         Lawrence's estate, through his executrix Jeannette Wakim (the petitioner), and Lila's estate, through her executor Christopher Pavlic (the respondent), are now fighting over ownership of the funds Lawrence withdrew from the joint accounts before Lila filed for divorce. The funds are currently in an IOLTA account held on Lawrence's behalf.

         The Circuit Court of Ohio County split the funds in half, not on the basis of divorce law, but simply to prevent the perceived unjust enrichment of Lawrence's estate. Wakim, as executrix of Lawrence's estate, appeals to this Court from the circuit court's decision.

         We reverse the circuit court and conclude that Lawrence had the right to withdraw the funds from the joint accounts by virtue of W.Va. Code, 31A-4-33 [1994], which states that bank deposits may be paid to any named depositor, or the survivor of them, of an account held in joint tenancy. Here, the bank accounts were joint accounts with the right of survivorship, and we note that withdrawals were made by both Lawrence and Lila, independently, during the marriage. The funds withdrawn by Lawrence during the marriage became the sole property of Lawrence upon their withdrawal.

         The circuit court's ruling splitting the funds in half and granting summary judgment in favor of Lila's estate is reversed; judgment is entered in favor of Wakim as executrix of Lawrence's estate; and this action is remanded with directions to enter an order releasing the funds in the IOLTA account to Lawrence's estate.

         I. Factual Background

         Lawrence and Lila were married on November 29, 1975. Although no children were born of the marriage, Lawrence had at least one child from a previous marriage and two granddaughters, Jennifer Swiger and petitioner Wakim. Lila had three children from a previous marriage: respondent Christopher Pavlic, Mark Pavlic and Karen Cutter. Lawrence and Lila appeared to be financially secure during their 36 year marriage.

         On October 5, 2006, Lila executed a Will in which she devised and bequeathed her entire estate to Lawrence. She named as co-executors Christopher Pavlic and Mark Pavlic. The Will provided that, if Lawrence were to predecease Lila, her estate would go to Christopher and Mark, share and share alike. Although Lila's daughter, Karen Cutter, was not included in the Will, Lila executed a document, also dated October 5, 2006, stating that Karen is mentally incompetent and providing that, if Lawrence is deceased, the co-executors would have the discretion to include Karen in the proceeds of Lila's estate.

         On September 12, 2008, Lawrence executed a Will in which he devised and bequeathed his entire estate to Lila. Lawrence named Lila as executrix. The Will provided that, if Lila were to predecease Lawrence, his estate would go to his granddaughters, petitioner Wakim and Jennifer Swiger, share and share alike. Wakim was named as an alternate executrix.

         A. The Joint Accounts and Withdrawals

         During the marriage, Lawrence and Lila opened a number of joint bank accounts between 1999 and 2006 in their names with the right of survivorship. In June 2009, Lila was diagnosed with cancer. Thereafter, on July 30, 2010, Lila opened two additional joint accounts: the first in the names of Lawrence, Lila or Mark Pavlic and the second in the names of Lawrence, Lila or respondent Christopher Pavlic.

         In July 2011, Lila learned that her cancer was terminal. On July 15, 2011, Lawrence, age 95, withdrew $242, 773.62 from the joint accounts and placed the funds in new accounts opened in his name only at the same banking institutions. Petitioner Wakim, Lawrence's executrix, asserts that Lawrence made the withdrawals to protect the assets upon learning that Lila had transferred at least $68, 819.30 to respondent Pavlic without Lawrence's knowledge and consent. Wakim contends that Lila, in her 80s, was under the undue influence of respondent Pavlic. Conversely, Pavlic contends that Lawrence was under the undue influence of petitioner Wakim.[1]

         B. The Divorce ...


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