Katz v. Fortgang

NEW YORK COUNTY
Trusts and Estates

New York Law Journal

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Surrogate Kristin Booth Glen

Fortgang moved for summary judgment dismissing a conversion action brought by her brother Katz. Katz cross-moved for summary judgment in his favor. The parties mother, Reva, opened a mutual fund account in hers, Katz's and Fortgang's name. Fortgang held Reva's power of attorney after months of discord with Katz, and withdrew money from the mutual fund account, placing it into Reva's separate accounts. Fortgang argued she used the money solely for Reva's benefit. The court found Florida law controlled the inter vivos transfers at issue here, noting all significant contacts were in Florida, and there was no indication Reva's mutual fund account agreement contained a provision for adopting the law of a particular jurisdiction. It stated title alone was not determinative of the rights of joint account holders during the life of the party who established the account as Florida courts looked for evidence of donative intent, noting the presumption a gift was intended by the depositor of funds into a joint account applied solely to funds remaining at the depositor's death. Thus, as Katz failed to offer affirmative proof to create an issue of fact on his claim for conversion, Fortgang's motion for summary judgment was granted dismissing the complaint.

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