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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 15-PR-1069

                 IN RE ESTATE OF FRANCES WALKER, APPELLANT,

                                         V.

                           STANLEY STEFAN, APPELLEE.

                          Appeal from the Superior Court
                            of the District of Columbia
                                 (ADM-1834-99)

                        (Hon. Cheryl M. Long, Trial Judge)
                     (Hon. Rhonda Reid Winston, Trial Judge)
                       (Hon. John M. Campbell, Trial Judge)

(Argued November 1, 2016                                     Decided June 15, 2017)

      Howard Haley for appellant.

      Thomas J. Gagliardo for appellee.

      Before EASTERLY and MCLEESE, Associate Judges, and RUIZ, Senior Judge.

      MCLEESE, Associate Judge:         Appellant, the estate of Frances Walker,

challenges the trial court‟s ruling that appellee Stanley Stefan was entitled to funds

from a bank account opened by Ms. Walker and Mr. Stefan. We affirm.
                                            2

                                       I.



      The following facts appear to be undisputed. Ms. Walker and Mr. Stefan,

who were long-time friends, jointly opened a savings account in July 1998. The

account contained approximately $183,000 at the time of Ms. Walker‟s death in

September 1999. Only Ms. Walker contributed funds to the account. Mr. Stefan

did not withdraw any funds from the account during Ms. Walker‟s lifetime, but he

did withdraw funds from the account to pay for Ms. Walker‟s funeral expenses.



      In November 1999, the estate‟s personal representative -- Ms. Walker‟s

great-nephew, Eulse Cee Young, Jr. -- transferred the funds from the savings

account to the estate‟s separate account. Mr. Stefan sued the estate, claiming

among other things that Ms. Walker intended for him to have the funds in the

account upon her death. The trial court granted summary judgment to the estate.

In In re Estate of Walker, 890 A.2d 216, 224-25 (D.C. 2006), this court concluded

that summary judgment was not warranted, because there were genuine issues of

material fact regarding Ms. Walker‟s intent in establishing the account.        We

therefore remanded for further proceedings. Id. at 226. We specifically directed

the trial court to consider on remand whether the Nonprobate Transfers on Death
                                            3

Act, D.C. Code § 19-601.01 et seq., which went into effect in 2001, had any

impact on the case. Id. at 221 n.5.



      On remand, the parties agreed that the Act applied, but they disagreed as to

the proper disposition of the funds at issue. The trial court interpreted the Act to

create a presumption of a right of survivorship in multiple-party accounts. The

trial court further concluded that the presumption had not been rebutted, because

there was no express disclaimer of a right of survivorship in the account

documents. Thus, the trial court concluded that the funds passed to Mr. Stefan as

the surviving party.



      The estate appealed, and we once again remanded, directing the trial court to

make factual findings as to the parties‟ intent in establishing and maintaining the

account. In re Estate of Walker, No. 08-PR-1638, Order (D.C. Jul. 30, 2010) (per

curiam). We also noted that the trial court had not addressed whether Ms. Walker

had given Mr. Stefan an interest in the account during her lifetime (“inter vivos”).

Id.



      On the second remand, the parties agreed that no additional facts needed to

be found and that the trial court should decide the case on the existing record. The
                                               4

trial court concluded that the clear weight of the evidence indicated that Ms.

Walker intended for the funds in the account to pass to Mr. Stefan upon her death.

The trial court therefore declared that Mr. Stefan owned the funds at issue by right

of survivorship.



                                         II.



      We briefly address two procedural issues raised by the estate. First, the

estate contends that the trial court on the most recent remand should not have

considered certain of Mr. Stefan‟s filings. We see no abuse of discretion. After

the parties submitted cross-motions for judgment and cross-oppositions, the trial

court rejected two of those filings as improperly formatted.           Both parties

resubmitted motions for judgment, but only the estate resubmitted a cross-

opposition. Even assuming that Mr. Stefan‟s resubmitted motion for judgment was

untimely and that Mr. Stefan should have resubmitted his opposition to the estate‟s

motion for judgment, the trial court had discretion to consider those filings. See In

re Estate of Yates, 988 A.2d 466, 468 (D.C. 2010) (under Super. Ct. Civ. R.

6 (b)(2), trial court may extend deadline upon showing of “excusable neglect”;

“[W]hether a party‟s neglect is excusable is at bottom an equitable [question],

taking into account all relevant circumstances surrounding the party‟s omission.
                                             5

The factors a court considers include the danger of prejudice to other parties, the

length of the delay and its potential impact on judicial proceedings, the reason for

the delay, including whether it was within the reasonable control of the movant,

and whether the movant acted in good faith.”) (brackets, ellipses, citation, and

internal quotation marks omitted); see generally Friendship Hosp. for Animals v.

District of Columbia, 698 A.2d 1003, 1006 (D.C. 1997) (if time limit is non-

jurisdictional, trial court has discretion to entertain untimely motion). In granting

Mr. Stefan‟s resubmitted motion for judgment, which was substantially identical to

the motion that had been timely submitted, the trial court noted that the original

rejection of Mr. Stefan‟s motion was for “technical procedural failings.” Under the

circumstances, and particularly given that the estate has not attempted to show that

it suffered unfair prejudice as a result of the delay in resubmission, we see no basis

for reversal.



      Second, the estate contends that Mr. Stefan should be denied relief because

Mr. Stefan did not properly raise the claim that he had a survivorship right in the

funds. We disagree. Mr. Stefan has consistently claimed to have a survivorship

right in the funds. In his complaint, for example, Mr. Stefan asserted that “[i]t was

Decedent‟s expressed intent that the account would be for the benefit of Plaintiff

upon her death.” In any event, we directed the trial court to consider the right of
                                                  6

survivorship in connection with the first appeal, In re Estate of Walker, 890 A.2d at

221 n.5, and the litigation thereafter has focused primarily on whether Mr. Stefan

had a right of survivorship. The trial court thus properly resolved the case on that

basis.



                                           III.



         Turning to the merits, we affirm the trial court‟s conclusion that the funds in

the account belong to Mr. Stefan. First, we provide pertinent background. Second,

we address the parties‟ arguments as to the proper interpretation of the Act. Third,

we address the estate‟s contention that there was insufficient evidence to support

the trial court‟s finding that Ms. Walker intended for the funds to pass to Mr.

Stefan upon her death.



                                           A.



         Before passage of the Act, multiple-party accounts opened by one party

without consideration from the other were presumed to be created for the

convenience of the first party, even where the account documents specified a right

of survivorship. In re Estate of Blake, 856 A.2d 1151, 1154 (D.C. 2004). Thus,
                                             7

funds deposited in a multiple-party account by a decedent were considered assets

of the decedent‟s estate.    Id.   A second party on the account could obtain

ownership of such funds only by proving by clear and convincing evidence that the

first party had transferred the funds to the second party through a valid inter vivos

gift. Id.



       In 2001, the District enacted a version of the Uniform Nonprobate Transfers

on Death Act. The Act, “[a]mong other things, . . . identifies different types of

multiple-party accounts, recognizes the various purposes for which they might be

held, and clarifies the rights and relationships among joint account holders,

including survivorship rights.” In re Estate of Blake, 856 A.2d at 1155 (footnote

and internal quotation marks omitted). Three sections of the Act are most directly

relevant to this appeal. First, D.C. Code § 19-602.03 (2012 Repl.) requires that all

accounts, including those established before the Act went into effect, be

categorized as one of several types of accounts -- namely, as “a single-party

account or multiple-party account, with or without right of survivorship.” D.C.

Code § 19-602.03 (b).    Second, D.C. Code § 19-602.04 (2012 Repl.) provides

forms for the types of accounts listed in § 19-602.03. If an account‟s documents

are not substantially similar to one of the provided forms, then the account is

categorized as “the type of account that most nearly conforms to the depositor‟s
                                                8

intent.” D.C. Code § 19-602.04 (b). Third, D.C. Code § 19-602.12 (2012 Repl.)

addresses the disposition of multiple-party account funds upon a party‟s death.

The first part of that section states that “[e]xcept as otherwise provided in this

subchapter, on death of a party sums on deposit in a multiple-party account belong

to the surviving party or parties.”        D.C. Code § 19-602.12 (a).           Section 19-

602.12 (c) provides that “[s]ums on deposit . . . in a multiple-party account that, by

the terms of the account, is without right of survivorship, are not affected by death

of a party, but the amount to which the decedent, immediately before death, was

beneficially entitled . . . is transferred as part of the decedent‟s estate.”



       Although the establishment of the account and Ms. Walker‟s death both

preceded the effective date of the Act, we do not understand the parties to dispute

that the Act applies to the account. See generally In re Estate of Blake, 856 A.2d

at 1155-56 (applying Act to account established before Act went into effect).



       In ruling for Mr. Stefan, the trial court reasoned along the following lines.

The account documents in this case were not substantially similar to the forms

provided in D.C. Code § 19-602.04 (a).              Therefore, under D.C. Code § 19-

602.04 (b), Ms. Walker‟s intent determined whether the account should be viewed

as an account with or without right of survivorship. Based on the evidence before
                                              9

it, the trial court concluded that Ms. Walker intended to create a multiple-party

account with a right of survivorship.



                                         B.


      We are not persuaded by the estate‟s objections to the trial court‟s

interpretation of the Act. First, the estate contends that it was entitled to prevail

under D.C. Code § 19-602.12 (c), because the account in this case was by its terms

without right of survivorship. More specifically, the estate argues that (1) at the

time the account was created, the presumption was that such accounts did not

confer a right of survivorship; (2) the account documents were silent on the issue;

and (3) the account therefore should be understood as not conferring a right of

survivorship. Our disagreement with the estate turns on the meaning of the phrase

“by the terms of the account.” For several reasons, we conclude that an account is

without right of survivorship within the meaning of that phrase only if the account

documents explicitly provide that the account does not confer a right of

survivorship.




      First, the Act defines the phrase “terms of the account” as including “the

deposit agreement and other terms and conditions, including the form, of the
                                               10

contract of deposit.” D.C. Code § 19-602.01 (12) (2012 Repl.). This definition

focuses on the explicit language of account documents, and points against the idea

that the phrase as used in § 19-602.12 (c) would treat silence as establishing the

absence of a right of survivorship.          Moreover, the phrase “by the terms” is

naturally understood to refer to express language. See In re McCaffrey’s Estate, 20

N.Y.S.2d 178, 184 (Surr. Ct. 1940) (“The words „by the terms of such revocation‟

are limited to a revocation in writing.”).



      Second, adopting the estate‟s reading would undermine a basic purpose of

the Act. By creating standard forms for various types of accounts, and by creating

a default rule that multiple-party accounts confer a right of survivorship, the

legislature attempted to establish clearer and more predictable rules to govern the

disposition of bank accounts. See D.C. Council, Report on Bill 13-298, at 3, 41-42

(Nov. 16, 2000) (stating generally that probate laws were in need of

“modernization, clarification, simplification, and uniformity,” and explaining that

Act would “provide clear and simple directions”); see also In re Conservatorship

of Milbrath, 508 N.W.2d 360, 363 (N.D. 1993) (purpose of provisions governing

multiple-party accounts in Nonprobate Transfers on Death Act is to “provide

simple non-probate alternatives for disposition of assets upon death of one party to

a multiple-party account”). The exception in § 19-602.12 (c) fits comfortably with
                                             11

the Act‟s purpose if the exception is limited to accounts that explicitly provide for

no right of survivorship. If the exception were instead read to incorporate silence

and other circumstances that might bear on the parties‟ intent as part of the

account‟s “terms,” then the exception would perpetuate the very complexity and

uncertainty that the Act was intended to reduce.



      Finally, the legislative history of the Act contradicts the estate‟s

interpretation of § 19-602.12 (c). The Judiciary Committee report explains that

“[s]ubchapter 2 establishes a preference for survivorship between the parties

whether or not specified in the account contract. But if the account contract

expressly negates survivorship rights . . . the surviving parties to the account do not

take by right of survivorship.” Report on Bill 13-298, at 42 (emphasis added).

The report reaffirms this understanding in the section-by-section analysis,

describing § 19-602.12 (a) as “mak[ing] an account payable to one or more of two

or more parties to a survivorship arrangement unless a nonsurvivorship

arrangement is specified in the terms of the account.” Id. at 46 (emphasis added).

In addition, the comment to the corresponding provision in the Uniform

Nonprobate Transfers on Death Act describes the effect of subsection (a) as

“mak[ing] an account payable to one or more of two or more parties a survivorship

arrangement unless a nonsurvivorship arrangement is specified in the terms of the
                                             12

account.” Unif. Nonprobate Transfers on Death Act § 212 cmt. (Nat‟l Conference

of Comm‟rs on Unif. State Laws 1990).



      For the foregoing reasons, we conclude that because the account documents

in this case do not expressly disclaim a right of survivorship, § 19-602.12 (c)‟s

exception does not apply.



                                        C.



      The estate also challenges the trial court‟s finding, under D.C. Code § 19-

602.04 (b), that Ms. Walker intended for the funds in the account to pass to Mr.

Stefan upon Ms. Walker‟s death. We uphold the trial court‟s finding.



      At the outset, the estate contends that Mr. Stefan was required to show by

clear and convincing evidence that Ms. Walker intended Mr. Stefan to have a right

of survivorship. In support of its argument, the estate relies primarily on D.C.

Code § 19-602.11 (b) and In re Estate of Blake. Section 19-602.11 (b) (addressing

“[o]wnership during lifetime”) imposes the clear-and-convincing-evidence

standard on a party to a multiple-party account who claims that another party to the

account made an inter vivos gift to the claimant of some of the sums deposited by
                                             13

that other party. The clear-and-convincing-evidence standard set forth in § 19-

602.11 (b) does not by its terms apply to a claim that a multiple-party account was

intended to create a right of survivorship upon the death of one of the account

holders. In In re Estate of Blake, 856 A.2d at 1156, we applied § 19-602.11 (b)‟s

clear-and-convincing-evidence standard to a claim that the decedent had intended

to make an inter vivos gift. Blake did not state that § 19-602.11 (b)‟s clear-and-

convincing-evidence standard would also properly apply to a claim that a decedent

intended to confer a right of survivorship.        We also note that § 19-602.12

(addressing “[r]ights at death”), which directly applies in this case, does not

include a clear-and-convincing-evidence standard.



      The trial court determined Ms. Walker‟s intent pursuant to § 19-602.04 (b)

of the Act, which as previously noted directs the trial court to make a finding as to,

among other things, the depositor‟s intent as to a right of survivorship. That

provision does not expressly indicate which party bears the burden of proof on that

issue or what the magnitude of that burden of proof should be. One court has

interpreted an analogous provision to place a burden of proof by a preponderance

on the party seeking to obtain possession of the proceeds in a disputed account.

See In re Estate of Greb, 848 N.W.2d 611, 618 (Neb. 2014) (“[T]he party not in

possession of the proceeds of a disputed account has the burden to move forward
                                            14

with evidence of the depositor‟s intent in creating the account. And in a dispute

regarding the ownership of an account arising from the depositor‟s death, such

intent must be proved by a greater weight of the evidence only.”) (footnote

omitted).



      We need not decide in this case either who bears the burden of proof on this

issue under the Act or what the magnitude of that burden should be. In ruling for

Mr. Stefan, the trial court found that “the clear weight of the available evidence”

indicated that Ms. Walker intended for Mr. Stefan to receive the funds in the

account upon her death.      The estate has not contended that this finding is

meaningfully different from a “clear and convincing evidence” finding. Thus,

even assuming that the clear-and-convincing-evidence standard applies to the trial

court‟s finding, we see no basis for remanding for the trial court to announce a

finding framed explicitly in those terms. Cf. In re Adoption of J.S.R., 374 A.2d

860, 864 (D.C. 1977) (“[W]e are satisfied that the standard enunciated by the trial

court, i.e., „substantial preponderance‟ of the evidence and the one we establish

herein, i.e., „clear and convincing‟ evidence, are substantially identical. Thus,

there is no occasion to remand to the trial court for consideration in light of this

opinion.”).
                                              15

        The estate also contends that the evidence is insufficient to support a finding

that Ms. Walker intended Mr. Stefan to receive the funds in the account upon her

death. We disagree. After the second remand, the parties asked the trial court to

take the facts in the record as undisputed. The trial court thus conducted what

amounted to a trial on stipulated evidence.



        Mr. Stefan relies on evidence supporting a conclusion that Ms. Walker

wanted the funds to pass to Mr. Stefan upon her death. Ms. Walker told the bank

manager that she wanted to remove her great-nephew (Mr. Young) from a prior

multiple-party account. There was evidence that Ms. Walker was angry at Mr.

Young, and both Mr. Stefan and the bank manager recalled Ms. Walker saying she

did not want Mr. Young to have “one red cent.” When Ms. Walker was told she

could not simply remove Mr. Young from the account, she closed that account,

withdrew the funds, and deposited those funds into the multiple-party account that

she opened with Mr. Stefan. Ms. Walker set up the new multiple-party account

with full knowledge that Mr. Stefan could withdraw funds from the account at any

time.



        The estate relies on evidence pointing in the opposite direction. Specifically,

the estate points to evidence that Ms. Walker initially tried to include both the bank
                                               16

manager and Mr. Stefan as co-owners on the account, and to Mr. Young‟s

testimony at a deposition that Ms. Walker had always used multiple-party

accounts, simply for the sake of convenience.



         The trial court analyzed the evidence and made the following findings:

(1) Ms. Walker clearly wanted to remove Mr. Young from the account; (2) Ms.

Walker could have set up an account in her own name, but chose to add Mr. Stefan

instead; (3) Ms. Walker‟s statement that she did not want Mr. Young to get “one

red cent” strongly suggested that Ms. Walker wanted the funds to pass to Mr.

Stefan rather than to her great-nephew; and (4) Ms. Walker knew that Mr. Stefan

could withdraw the sums on deposit at any time. The trial court also found that

Ms. Walker‟s attempt to add the bank manager to the account merely reflected her

desire to have a personal steward for the account, rather than serving as an

indication that Ms. Walker did not intend for Mr. Stefan to have a survivorship

right.



         We review a trial court‟s findings of fact for clear error. Thai Chili, Inc. v.

Bennett, 76 A.3d 902, 909 (D.C. 2013). “A finding is clearly erroneous when,

although there is evidence to support it, the reviewing court on the entire evidence

is left with the definite and firm conviction that a mistake has been committed.”
                                             17

Abulqasim v. Mahmoud, 49 A.3d 828, 834 (D.C. 2012) (internal quotation marks

omitted).     “[W]here the evidence [is] such that either one of two different

conclusions might reasonably have been drawn from it, the decision is for the trial

court; and the appellate court may not reweigh the evidence or override the

findings, except where it clearly appears they are manifestly wrong.” Palmer v.

Garves, 123 A.2d 611, 612 (D.C. 1956) (internal quotation marks and ellipses

omitted). We find no error in the trial court‟s finding that Ms. Walker intended for

the account to have a right of survivorship, because there was sufficient evidence

to support that finding. Cf. Khawam v. Wolfe, 84 A.3d 558, 563 n.2 (D.C. 2014)

(trial court did not commit clear error in making findings based on conflicting

evidence).1


      1
         At times, Mr. Stefan seems to suggest that the trial court should have ruled
in his favor on an alternative rationale. Specifically, Mr. Stefan argues that D.C.
Code § 19-602.12 (a) creates a presumption that a multiple-party account confers a
right of survivorship, and that presumption can be rebutted only if the “terms of the
account” provide otherwise, D.C. Code § 19-602.12 (c). Mr. Stefan further argues
that because the account documents in this case were silent as to a right of
survivorship, the account did not by its terms rebut the statutorily presumed right
of survivorship. Under this rationale, Ms. Walker‟s intent would be irrelevant.
Although § 19-602.12 (a) does create a default rule that multiple-party accounts
confer a right of survivorship, it also states that the default rule is inapplicable if
other provisions in the subchapter “otherwise provide[].” Arguably, § 19-
602.04 (b) provides otherwise in the circumstances to which it applies. Unif.
Nonprobate Transfers on Death Act § 212 cmt. (Nat‟l Conference of Comm‟rs on
Unif. State Laws 1990) (provisions corresponding to D.C. Code §§ 19-604.04
and .12 “permit a court to implement the intentions of parties to a joint account
governed by [the provision corresponding to D.C. Code § 19-606.04 (b)]” based on
                                                                         (…continued)
                                            18



      The judgment of the trial court is therefore

                                                                    Affirmed.




(…continued)
the form of the account and “extrinsic evidence tending to confirm or contradict
intention as signalled by the form”). In any event, the rationale suggested by Mr.
Stefan and the approach taken by the trial court both lead to the conclusion that
Mr. Stefan is the owner of the funds at issue. Thus, we need not decide the precise
scope of the default rule (or presumption) created by the statute with respect to the
rights of survivorship in multiple-party accounts.
