Surrogate Edward McCarty III
Executor Walsh commenced a proceeding to turn over bank accounts to her claiming they belonged to the estate. She claimed the subject accounts were merely convenience accounts. Respondents answered and claimed the funds in the accounts belonged to them either as survivors of a joint account, or as the named beneficiary. A hearing was held and the court concluded Joan Tipping was entitled to the account where she was named the beneficiary, but that neither party met their burden of proof regarding the second account which passed as tenants-in-common to Eileen A. Tipping, Joan and decedent's estate. Walsh now argued Joan forfeited her right to share in their father's estate and trust as she violated the two provisions of the no contest clause in the will. The court disagreed finding Joan defended against the estate's claim, she did not challenge the will or trust, thus she could not be deemed to have triggered the in terrorem clauses under the strict construction of the terms of the will. Also, the court did not adjudicate her claim to be invalid, but found in Joan's favor. Hence, it found it was not the testator's intent for the beneficiary who defended against a claim, and prevailed, to forfeit her bequest, denying Walsh's motion.