Goter v. BrownGoter v. Brown
In his last will—which had been revised not long before his death—decedent left to Ronald Goter, “the rest, residue and remainder of my property * * * including stocks, bonds and other financial securities held in brokerage accounts.” At the time of his death, he held funds in an IRA account with PaineWebber. His sister, Dorothy Brown, claimed the IRA funds, arguing that the provision in the will was ineffective to countermand the designаted beneficiary in the IRA account papers. The probate judge agreed with her. He appeals. We reverse.
The probate judge concluded that an IRA account is “a trust account оnly as it applies to federal tax law,” citing Goeke v. Goeke, 613 So.2d 1345 (Fla. 2d DCA), rev. denied, 621 So.2d 1065 (Fla.1993).1 From this proposition, the court reasoned that the IRA “cannot be established as a `trust account,’ the distribution of which can now be determined by the decedent‘s last will.”
We are unwilling to make such broad pronouncements regarding the nature of IRA‘s. For one thing, these accounts are held in many forms, e.g. traditional trust accounts, bank accounts, stock brokerage accounts, and even insurance policies. They may be true trusts, or they may be merely custodial accounts in which the custodian has little if any power to decide on the disposition of the funds. To say that thеy are all categorically the one or the other is to ignore the versatility and flexibility of this tax deferral device. It is necessary in every case to look to the form of the account and the documentary language governing the holding.
“may conclusively rely upon, аnd shall be protected in acting upon, any written or oral order from the Customer or any notice, request, consent, certificate or other instrument or paper believed by it to be genuine and to have been properly executed, so long as it acts in good faith in taking or omitting to take any action in reliance thereon.”
Years later, when decedent made the critical change to his will nаming Goter to take any stock brokerage accounts, he also then gave his sister all his life insurance benefits and a $50,000 specific bequest, thereby changing the entire scheme of his testamentary distribution.
If a tеlephone call or other form of oral instruction by decedent to PaineWebber would have sufficed to make an enforceable change in the designated primary beneficiary of the IRA, then surеly the more formal— and quite reliable—means of naming the beneficiary in a properly executed will should be sufficient as well. Reading the language of the IRA documents and the last will together, we conclude that in this case the testamentary change was entirely effective to change beneficiaries. The IRA is undoubtedly a brokerage account within the meaning of the residuary clause of the will. It follows that Goter takes the brokerage account.
REVERSED.
GLICKSTEIN and KLEIN, JJ., concur.
ON MOTION FOR REHEARING
FARMER, Judge.
In her motion for rehearing, appellee Brown newly advances what she describes as a missing second page to the account agreement betwеen the testator and PaineWebber, Incorporated. In this previously unseen second page—which, we hasten to add, was never adduced in the trial court—there is the following provision:
“5.5 The term `beneficiary’ means the person or persons designated as such by the `designating person’ (as defined below) on a form acceptable to the Custodian for use in connection with the Adoption Agreement signеd by the designating person, and filed with the Custodian. The form may name persons or estates to take upon the contingency of survival. However, if no such designation on such a form effectively disposes of thе IRA as of the time such distribution is to commence, the term `Beneficiary’ shall mean the designating person‘s estate. The form last accepted by the Custodian before such distribution is to commence, upon bеcoming effective during the designating person‘s lifetime shall be controlling, and whether or not fully dispositive of the IRA, thereupon shall revoke all such forms previously filed by that person. The term `designating person’ mеans the Customer during his or her lifetime; after Customer‘s death, it also means the Customer‘s spouse if the spouse begins to receive a portion of the IRA (pursuant to such a designation by the Customer) under a form of distributiоn.”
If this text had been presented to the trial judge and accepted as the controlling document, plainly under the rationale of our decision we would have decided on the merits that the IRA would not then рass under the particular residuary clause in this case.
The problem, however, is that the document was never raised or presented in the trial court. Indeed, during oral argument in the case, appellеe Brown‘s counsel responded to questioning as follows:
“JUDGE KLEIN: The account agreement between PaineWebber and the decedent, did it discuss how the beneficiary form might be changed?
“MR. HUTH: No sir, it didn‘t.
“JUDGE KLEIN: Did it require him to give notice in writing to PaineWebber if he decided to change his beneficiary?
“MR. HUTH: No, that‘s the problem.”
Thus, not only was the document never presented to the trial court, its very existence
Appellee Brown has not suggested that the appellant Personal Representative failed to produce the document in response to a proper request for production. On the contrary, she alleges that PaineWebber failed to produce it in response to such a request. Actually, she avers that PaineWebber produced оnly the page relied on by the trial court in making its decision and reviewed by us and quoted in our original opinion. Moreover, she adds that it was only after reading our opinion that PaineWebber contacted hеr counsel and furnished this new document.1 We also note that there is no evidence furnished with this unprecedented appellate production, demonstrating that the decedent ever manifested assent tо its terms; nor is there any evidence from either appellee Brown or PaineWebber as to why in the exercise of due diligence it was not produced in the trial court.
Under these circumstances, we hаve little hesitancy in concluding that this is all too late to change our initial decision. It seems to us starkly unfair to allow a party who has fought the battle below and on appeal on one evidentiary basis, to be given leave to fight it on appellate rehearing on quite a different one. Moreover, even if there were no unfairness present, it hardly needs belaboring by us that none of this relates to something we overlooked or misapprehended, the standard for rehearings on appeal. See
Our original decision was predicated on the only IRA account document presented below. It is not possible to read our decision as expressing the view that the residuary beneficiary of the Will would have taken the IRA in contravention of the kind of beneficiary clause now presented to us. Our decision is, in short, the result of the only text we were given. As authority, it extends only that far.
In denying the motion for rehearing, we add that much of it is in open defiance of the prohibition against argument in such a motion.
MOTION FOR REHEARING DENIED.
KLEIN, J., concurs.
GLICKSTEIN, J., concurs specially with opinion.
GLICKSTEIN, Judge, concurring specially.
I, too, would deny the motion for rehearing in light of our holding on a similar motion for rehearing in Polyglycoat Corp. v. Hirsch Distributors, Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983), rev. dismissed, 451 So.2d 848 (Fla.1984), that matters may not be raised for the first time on such motion.