Can A Right of Survivorship Be Challenged?

If your deceased parent owned property with your sibling, you are probably wondering whether this right of survivorship can be challenged.

This question typically comes up when your parent owned something with your sibling in a joint tenancy with rights of survivorship,

The quick answer: yes, you can challenge a right of survivorship. But will you be successful? It depends on the type of property jointly owned, your grounds for challenging it, and the strength of your evidence.

Types of properties under rights of survivorship

Generally, there are two types of substantial properties under rights of survivorship that are always challenged: bank accounts and real property. Different rules apply to these types of properties when challenging it.

Challenging bank accounts under joint tenancy with right of survivorship

New York Banking Law § 675 states that when two or more persons open a bank account, making a deposit of cash, securities, or other property, a presumption of joint tenancy with right of survivorship arises. Matter of New York Community Bank v. Bank of America, et. al., 169 A.D.3d 35 (2019).

In a joint tenancy with right of survivorship, the surviving depositor will receive the entire amount in the bank account, without need of probate, when the co-depositor dies. This bank account is excluded from probate because it is not considered as property of the decedent when the decedent dies. The contents of the bank account automatically transfer to the surviving depositor.

Thus, if the parent opens a joint bank account with the child and the parent dies, the child receives the entire amount in the bank account as the surviving co-depositor. This can be problematic because it always results to fights among the decedent’s children. A sibling almost always challenges property transferred to another sibling under joint tenancy with rights of survivorship.

No survivorship language on signature card

The first ground to disprove a bank account under rights of survivorship is that the bank account’s records do not show an intent to confer survivorship rights. Survivorship language has to appear in the signature card in order to establish the presumption that the co-owned bank account was established for joint tenancy under rights of survivorship.

Joint bank account for convenience only

Even if there was a signature card with survivorship language giving rise to the presumption of joint tenancy under rights of survivorship, you may be able to rebut this presumption by showing that the joint bank account was established for convenience only. New York Banking Law § 678. A joint bank account is established for convenience when the parent had no intent to donate ½ of his bank account to the child, the parent continued to exercise absolute dominion over the bank account during his lifetime, the child was only allowed to access the bank account to make financial transactions for the convenience of the parent, and the child was only allowed to make minor withdrawals from the bank account, always with the consent of the parent. Matter of Najjar, 195 A.D.3d 1483 (2021).

Challenging real estate property under joint tenancy with rights of survivorship

Real property law governs the proceedings to challenge real property under rights of survivorship. If what was transferred by your parent to your sibling under rights of survivorship was real estate, the deed is challenged similar to the grounds used in a will: undue influence, fraud, forgery, coercion, or a combination of two or more grounds.

Undue influence occurs when the intent of the grantor has been overridden by the beneficiary. It usually happens when the grantor is in a weakened mental and/or physical state, allowing the beneficiary to unduly influence him. If a confidential relationship existed between the beneficiary and the deceased grantor (e.g. attorney, financial advisor, nursing home director, accountant), the presumption is that the beneficiary unduly influenced the grantor, and the beneficiary has to prove that he did not commit no undue influence.

To prove undue influence, medical records of the deceased joint tenant at the time the transfer occurred is obtained to see whether the deceased was under strong medication that could alter his senses. Other documentary evidence, such as correspondences and notes, and witness depositions, such as the lawyer who drafted the deed, can also be used to prove whether the deceased was under undue influence when the deed was executed. If the deed is set aside, the property then passes through the deceased joint tenant’s probate.

Forgery occurs when the signature in the deed is not the grantor’s. There is fraud when the deceased was deceived with regard to the circumstances of signing the deed.

A combination of two or more grounds, together with undue influence, are used to challenge a deed transferring real property to the joint tenant-sibling under rights of survivorship.

Challenging a right of survivorship instrument is possible when you have evidence to prove a ground. If you have a suspicion but don’t have the evidence now, evidence can be obtained in discovery to see whether your suspicion of undue influence or fraud is correct. Should you need assistance in evaluating your case, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Who has standing to challenge a survivorship account, and where

Before challenging a joint bank account, you need standing. Generally, you must be one of the following:

• The personal representative of the estate. If you have been appointed executor (under a will) or administrator (if there is no will), you can bring a discovery and turnover proceeding under SCPA § 2103 to recover funds you claim belong to the estate rather than to the surviving co-owner. To be appointed, you must first petition for letters testamentary or letters of administration.
• A beneficiary or distributee objecting to an accounting. If the surviving co-owner is also the fiduciary of the estate, you often learn that the account was excluded from the estate only when the fiduciary files an accounting. As an interested party, you may file objections under SCPA § 2211, and the court decides whether the funds belong to the estate.

These disputes are litigated in Surrogate's Court, typically through a contested accounting or an SCPA Article 2103 discovery and turnover proceeding. If the signature card contains the statutory survivorship language, the burden is on the challenger to rebut the presumption by clear and convincing evidence.

Defects in the signature card can shift the burden of proof

Banking Law § 675 actually creates two distinct presumptions: the survivorship presumption, under which the survivor takes the entire balance on the death of one tenant, and the moiety presumption, under which each tenant is presumed to own one-half of the account during their joint lifetimes. The mere fact that an account is held jointly does not by itself create survivorship rights. Matter of Camarda, 63 A.D.2d 837.

Beyond missing survivorship language, defects in how the account was opened can defeat the presumption:

• The card was not signed by all joint tenants. A valid joint tenancy with right of survivorship requires the four unities of time, title, interest, and possession. If an account originally held by two spouses later had a child's name added, and the child did not sign the original card at the same time as the parents, the survivorship presumption does not automatically extend to the child.
• Account statements do not control. Monthly statements printed with the words "joint tenancy with rights of survivorship" are not a substitute for a proper signature card, because the depositor's signature does not appear on them and they do not reflect the depositor's intent.

Where the presumption never arises, the burden shifts: the surviving co-owner must prove that the decedent actually intended a gift with survivorship rights.

Additional evidence courts weigh in convenience account cases

Beyond showing that the decedent kept control of the account, New York Surrogate's Courts weigh other circumstantial evidence when deciding whether an account was opened for convenience only. Not every factor must be present; a majority pointing in one direction can be decisive:

• The decedent was elderly, frail, or in declining health when the co-owner's name was added.
• There is no evidence the decedent understood the nature and consequences of a joint survivorship account.
• The decedent's will leaves the estate to all children equally — inconsistent with an intent to gift one child the entire account.
• The co-owner's own conduct or statements contradict a belief that the money is his or hers.
• The funds were simply transferred from an earlier account held in the decedent's sole name.
• The decedent gave the co-owner a power of attorney covering banking, which supports the argument that the name was added so the co-owner could act as an agent to pay bills and manage finances — not to confer ownership.

When no right of survivorship exists in the first place

Before challenging a survivorship transfer on grounds like undue influence or fraud, it is worth checking whether a right of survivorship was ever validly created. In New York, survivorship is never implied for ordinary co-owners. Under EPTL § 6-2.2(a), a disposition of real or personal property to two or more persons is presumed to create a tenancy in common — which has no survivorship — unless the instrument expressly declares a joint tenancy. If the deed naming your parent and sibling does not expressly state that they hold as joint tenants with right of survivorship, your sibling may only own an undivided share, and your parent's share passes through the estate, not to your sibling automatically.

The major exception is married couples. Under EPTL § 6-2.2(b), a disposition of real property to a husband and wife creates a tenancy by the entirety, which carries survivorship by default unless the deed expressly declares otherwise.

Challenging survivorship by showing the joint tenancy was severed

Even where a valid joint tenancy with right of survivorship in real property was created, survivorship can be defeated if the joint tenancy was severed before the co-owner's death. A joint tenancy requires four "unities" — interest, time, title, and possession — that must exist when the tenancy is created and continue throughout its life. If any unity is broken, the joint tenancy converts into a tenancy in common, and the deceased owner's share passes through their estate instead of to the surviving co-owner.

Severance can occur in several ways:

• By one joint tenant conveying their interest during life. A joint tenant can unilaterally sever the joint tenancy by transferring their interest, even to themselves directly under modern New York practice.
• By mutual written agreement of the co-owners to hold the property as tenants in common.
• By a partition action under RPAPL Article 9, in which a co-owner asks the Supreme Court to physically divide the property or, more commonly for a single dwelling, order a partition by sale with the proceeds divided.

If you can show that the joint tenancy was severed before your parent died — for example, through a deed or agreement your parent signed during life — the surviving co-owner takes nothing by survivorship, and your parent's share belongs to the estate.