Friday, November 28, 2014
In Wagner v. State of Maryland, decided October 30, 2014, the Court of Special Appeals of Maryland affirmed the conviction of a daughter on charges of theft and misappropriation as a fiduciary, arising from her withdrawal of funds from her father's bank account which she used for her own purposes. The daughter had been added as a "joint owner" on the account by her 80+ year old father following the death of his wife.
The issue as framed on appeal was whether a person can be guilty of theft from a joint account on which that person is named as a joint owner.
The amount in controversy was more than $120,000 withdrawn by the daughter over 3 years. The appellate court concluded that "even though [the daughter] was named as a 'joint owner' in the parties' agreement with the bank, and not a convenience person, it does not determine conclusively that [she] was an [owner] for the purpose of the criminal statute."
Several key facts supporting the conviction are described in the decision, including:
- Testimony by the father at trial that the only reason he added his daughter's name to the account was to permit her to get money for him, if he was unable to get it for himself.
- The father retained control over the checkbook for the account.
- Evidence that thousands of dollars were withdrawn from the father's account by the daughter using a cash card, which the father said he was unaware existed.
- The daughter had failed to make payments on a $85k mortgage taken out by her father on his home, which the father testified was a loan to his daughter to help her business, and not a gift as the daughter claimed. Notice of foreclosure on the home was apparently what tipped the father to ask questions about his finances.
Maryland has not, apparently, adopted the Uniform Multiple Person Accounts Act, (UMPAA, first approved 1989) which is intended to clarify the rights of depositors and other parties in jointly titled bank accounts.
Under Section 11 of UMPAA, there is a legal presumption that during the lifetime of parties named on an account, the "account belongs to the [nonspouse] parties in proportion to the net contribution of each to the sums on deposit." Only if there is clear and convincing evidence of a different intent, i.e., a gift, does the non-depositor have a "beneficial right" to sums on deposit. For parties married to each other, "in the absence of proof otherwise, the net contributions of each is presumed to be an equal amount." The UMPAA reverses what is often a common law presumption, that non-spouse joint account holders have become joint owners of the funds even prior to death. See also Uniform Probate Code Section 6-211, with similar language regarding "ownership during lifetime" and Section 6-212 governing "rights at death."
Even though Maryland apparently has not adopted the UMPAA, and thus "titling an account as 'joint owner' presumptively creates an ownership interest in both parties," the appellate court in Wagner concluded the "presumption can be rebutted by evidence of a contrary interest of the original owner of the account." Thus, the testimony by the father regarding the limited purpose of adding his daughter to the account was key to the conviction.
There are abundant collateral lessons that can be drawn from the facts of this case. It demonstrates the often casual way that parties enter into so-called joint accounts, probably with little awareness of the significance of both the law and types of accounts they could have chosen.
Further, there were plenty of red flags signaling the opportunity for trouble from the outset, including the fact the daughter's business was transporting people to gambling sites. The father was one of the "customers" on those trips. The daughter testified that at least some of her cash withdrawals were for her father to use in gambling, which apparently the father agreed was true, although he testified the sums he authorized were in the "hundreds" not "thousands" of dollars.