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].