Ll? IN THE CIRCUIT COURT OF THE 15TH IUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA GUARDIANSHIP DIVISION FILE NO.: IN RE: THE MATTER OF :2 23 3? - :3 IRVING STONE, 23,3393 21:? :2 Deceased. MOTION TO COMPEL RETURN OF TENANCY :13 BY THE ENTIRETIES BANK ACCOUNT MONEY WITHDRAWN BY TEMPORARY GUARDIAN 12:11 In E-NVFZI Jean Stone, the widow of the Ward/Decedent, hereby requests this Court to enter an Order compelling the previously appointed Emergency Temporary Guardian, Elizabeth Savitt, to return to Mrs. Stone, all of the funds that were wrongfully withdrawn from the tenancy by the entireties checking account that Irving and Jean Stone maintained at Wells Fargo Bank. In support thereof, Jean Stone states as follows: 1. On December 2, 2011, the Court entered an Order upon the petition of the Ward/Decedent?s two sons and their wives, appointing Elizabeth Savitt as Irving Stone?s Emergency Temporary Guardian. Letters were issued to Ms. Savitt on December 2, 2011, although she did not actually ?le her application and oath until December 7, 2011, at which time corrected letters were issued. 2. On December 6, 2011, Elizabeth Savitt withdrew $18,000 from Mr. and Mrs. Stone?s tenancy by the entireties interest checking account at Wells Fargo Bank. Both Mr. and Mrs. Stone contributed their separate ?mds to this joint checking account. Mrs. Stone was not provided any advance notice of the $18,000 withdrawal ?'om her account with her husband. At KAYE SCHOLER LLP Phillips Point West Tower Suite 900 777 South Flagler Drive West Palm Beach FL 33401 Tel. (56l) 802-3230 Fax (561) 802-3211 ClB'll? cc. In Re: The Matter of Irving Stone Widows Motion To Cbmpel Return Of Tenancy By The Emir-Bria Bank Account Money Wrong'uliy Withdrawn By Temporaov Guardian Page 2 of 5 the time of the Emergency Temporary Guardian?s $18,000 withdrawal, the account held a balance of only $16,151.73. The Emergency Temporary Guardian?s $18,000 withdrawal caused two checks to be dishonored resulting in overdraft fees of $105.00, and left a negative ending balance of minus $1,955.01. 3. The Emergency Temporary Guardian withdrew the tenancy by the entireties money even though she was speci?cally told about a note receivable that was due and owing to Irving Stone by his son, David Stone, which was not held as a tenancy by the entireties with Mrs. Stone. 4. On December 9, 2011, and again on December 21, 2011, written demand was made upon the Emergency Temporary Guardian to' return all of the money she had wrong?illy withdrawn from Mr. and Mrs. Stone?s tenancy by the-entireties checking account. Mrs. Stone?s demand for restitution to the tenancy by the entireties account monies that she shared with her husband at Wells Fargo Bank has thus far been ignored. Upon information and belief, no part of the $18,000 has been spent by the Emergency Temporary Guardian. 5. Irving Stone died on December 10, 2011 - just four days after Elizabeth Savitt improperly withdrew $18,000 from Mr. and Mrs. Stone?s joint checking account. 6. Florida Statutes Section 655.790) provides in relevant part that ?[a]ny deposit account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise speci?ed in writing The statute was enacted in response to footnote eleven of Bea! Bank Almond Associates, 780 So. 2d 45 (Fla. 2001), in which the Florida Supreme Court expressed frustration that ?nancial institutions were not required to give married couples the opportunity to select ten'ancy by the entireties on their signature cards. KAYE SCHOLER LLP Phillips Point West Tower Suite 900 777 South Flagler Drive West Palm Beach FL 3340 Tel. (561) 802-3230 Fax (56l) 802-3217 In Re: The Matter of Irving Stone Widow '3 Motion To Comps! Return 0/ Tenancy By The Emirates Bank Account Money Withdrawn By Temporary Guardian Page Bea! Bank the Florida Supreme Court also con?rmed the holding of Simmer v. Orlan, 660 So.2d 1111 (Fla. 4?h DCA 1995) in which the Fourth District Court of Appeal held that the ?nonseverability doctrine [of tenancy by the entireties accounts] preserves the entireties status of funds even after one spouse renames an account or transfers money from it without the consent of the other.? Simmer, supra, 660 So. 2d at 1114 (quoted in Baal Bank, suprathe Florida Supreme Court noted in Bea! Bank, there are signi?cant differences in the legal consequences between two owners simply holding property as jdint tenants and a married couple holding property as tenants by the entireties. Each tenant by the entireties owner holds the whole of the property, and not a share, moiety or divisible part. Bea! Bank, supra 780 So. 2d at 53. Such tenancy by the entireties property belongs to neither spouse individually, but rather, each spouse is seized of the whole. Id. Neither Spouse can take tenancy by the entireties property for himself or herself without the consent of the other spouse. Absent consent, the property never loses its entireties character. Simmer, supra 660 So. 2d at 1114. 8. The Wells Fargo bank account is held jointly in the names of Irving or Jean Stone. Since Irving and Jean Stone were husband and wife, and since no writing exists specifying that this is not a tenancy by the entireties account, under Florida Statutes Section 655.790), the account is a tenancy by the entireties. As such, the funds never lost their entireties character when they were wrongfully removed from the account by the Emergency Temporary Guardian, and they must now be returned to the surviving owner, Jean Stone. 9. Florida Statutes Section provides that all legal and equitable interests in property owned as an estate by the entirety by an incapacitated person for whom a guardian of the property has been appointed may be sold, transferred, conveyed, or mortgaged only upon Order of the Court, and only if the spouse who is not incapacitated joins in the sale, KAYE SCHOLER LLP Phillips Point West Tower Suite 900 777 South Flagler Drive West Palm Beach FL 33401 Tel. (561) 802-3230 Fax (561) 802-3217 qt?; In Re: The Matter of Irving Stone Wtdaw's Motion To Campel Return Tenancy By The Entirelias Bank Account Money Wrongfulbl Withdrawn By Temporary Guardian Page 4 of 5 transfer, conveyance or mortgage of the tenancy by the entircties property. In this instance, the Court never ordered the tenancy by the entireties property transferred, and Jean Stone never consented to the transfer from the Wells Fargo account. 10. Finally, the Emergency Temporary Guardian cannot unilaterally withdraw joint ?mds ?'om a bank account. Rather, the Emergency Temporary Guardian must ?rst provide notice of hearing and an opportunity for the joint tenant to be heard before the Court can authorize invasion into the account by a guardian of an incapacitated joint tenant. Hagapian v. Zimmer, 653 So. 2d 474 (Fla. 3d DCA 1995). No such advance notice and hearing was ever provided to Jean Stone, nor was an order ever entered authorizing the withdrawal. WHEREFORE, Jean Stone, the widow of the Ward/Decedent, requests this Court to enter an Order compelling the previously appointed Emergency Temporary Guardian, Elizabeth Savitt, to return to Mrs. Stone the entire $18,000 wrongfully withdrawn ?'om the Wells Fargo checking account, and to reimburse Mrs. Stone for the returned check fees totaling $105. 00. ?ne] Kushnefl/mf manner@kayesc oler. com Florida Bar No. 330957 Attorney for Jean Stone KAYE SCHOLER LLP 777 South Flagler Drive, Ste. 900 West West Palm Beach, FL 33401 (561) 802-3230 KAYE SCHOLER LLP Phillips Point West Tower Suite 900 777 South Flagler Drive West Palm Bach FL 33401 Tel. (561) 802-3230 Fax (561) 802-3217 In Re: The Matter of Irving Stone Widow '5 Motion To Campel Return Of Tenancy By The Entimn?e: Bank Account Money Wrongfully Wl'lhdrawn By Temporary Guardian Page 5 of CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via facsimile and US. Mail this 121 day of December, 2011 to Clifford B. Hark, Esq., 3301 NW Boca Raton Boulevard., Suite 200, Boca Raton, FL 33431, (561) 955-0094; Stephen Hall, Esq., 1520 10th Avenue North, Suite F, Lake Worth, FL 33460, (561) 533-9814; and Sheri Beach, FL 33483, (561) 243-6933. Hazeltine, Esq., 800 Palm Trail Plaza, Suite 3, Delray Mz??iel Kush?ner shner@kayescholer.com Florida Bar No. 330957 Attorney for Jean Stone KAYE SCHOLER LLP 777 South Flagler Drive, Ste. 900 West West Palm Beach, FL 33401 (561) 802-3230 605219s1_1.oocx KAYE SCHOLER LLP Phillips Point West Tower Suite 900 777 South Flagler Drive West Palm Beach FL 3340] Tel. 802-3230 Fax (561) 802-32?