CONCETTA A. FLORIO [Note 1] vs. CONCETTA A. FLORIO, administratrix, [Note 2] & others. [Note 3]

Concetta A. Florio (Concetta), individually and as administratrix of the estate of Mary T. Palmeri (Mary), commenced an action in the Probate and Family Court seeking a determination that the funds in three allegedly joint bank accounts -- two accounts opened at a Cambridge Savings Bank branch in Massachusetts, and one account opened at a First Union National Bank branch in Florida -- belonged solely to Mary at the time of her death, as well as an order transferring funds from those accounts to Mary's estate. [Note 4] A judge in the Probate and Family Court reported the case to the Appeals Court, and we granted Concetta's application for direct appellate review. For reasons we shall explain, we conclude that, on the record before us, the Massachusetts bank accounts are not joint accounts and the requested relief appears not to be necessary. We decline to grant the requested relief with respect to the Florida account.

Concetta, Mary, the late Reverend John A. Palmieri (John), and a third (deceased) sister were siblings; Concetta is the administratrix of both Mary and John's estates. Concetta alleged in her complaint that, at the time of Mary's death, both Mary and John were joint owners of the three bank accounts at issue but that John was listed for "convenience only," and that Mary was in fact the sole rightful owner of the funds. The complaint further alleged that substantial tax savings would result for the beneficiaries of both estates if it were determined that John was listed on the accounts for convenience purposes only.

Concetta contends that this case is similar to those in which the court has reformed trusts "on clear and decisive proof that the instrument fails to embody the settlor's intent because of scrivener's error," Walker v. Walker, 433 Mass. 581, 587 (2001), quoting DiCarlo v. Mazzarella, 430 Mass. 248, 250 (1999), and "produced tax results that were clearly inconsistent with the settlor's tax objectives." Walker v. Walker, supra, quoting BankBoston v. Marlow, 428 Mass. 283, 285 (1998). See Putnam v. Putnam, 425 Mass. 770, 772 (1997), and cases cited. We decide such " 'uncontested' cases," where an interpretation of Massachusetts law is needed, "because the parties have represented that a decision from this court will facilitate their dealings with the Internal Revenue Service. We do so because we are mindful of the fact that the Internal Revenue Service and the Federal courts are not bound by decisions of lower State courts." Walker v. Walker, supra at 582. Nonetheless, we have "declined to decide cases in inappropriate circumstances, such as where no question of [Massachusetts] law . . . is presented." Id. at 583. See State St. Bank & Trust Co. v. Alden, 444 Mass. 1011, 1012 (2005); Kirchick v. Guerry, 429 Mass. 215 (1999). Where the law of another jurisdiction governs, we have expressed our "doubt that any attempt on our part to reform it would

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be binding on the Federal taxing authorities." State St. Bank & Trust Co. v. Alden, supra, citing Commissioner of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465 (1967). Thus, "[i]n the absence of anything to indicate that a reformation by us would be anything other than futile," State St. Bank & Trust Co. v. Alden, supra, we have declined to grant relief in this type of case. Id. See Mazzola v. Myers, 363 Mass. 625 (1973).

Applying these principles to this case, we address the accounts located in Massachusetts at the time of Mary's death separately from the one located in Florida.

Massachusetts accounts. According to the record before us, [Note 5] when she died, Mary owned two bank accounts at the Cambridge Savings Bank. Both accounts were opened at a Cambridge branch of the bank on October 25, 1999, less than one year before Mary's death. While the parties filed a "stipulation as to all material facts," including that Mary and John were listed as joint owners of the accounts, and although John's name appears in the address field of certain account statements and "advice of withdrawals," this does not establish that either account in fact was a joint account. Significantly, a registration card for one of the accounts indicates that it is a "personal account" and lists only Mary's name. Only Mary signed the card, and only her Social Security number is listed. Indeed, the bank's keeper of the records has indicated that the bank does "not have anything in the name of John A. Palmieri," and there is no assertion by the bank that the accounts were joint accounts. On this record, therefore, it appears that the accounts are not in fact joint accounts and the relief sought with respect to the Massachusetts accounts is not necessary.

Florida account. With respect to the Florida account, the record indicates that the account was opened at a bank branch in Jacksonville, Florida, on April 11, 1994. Notably absent from the record are copies of the depositor's contract or agreement governing the account, and the account signature card. [Note 6] Unlike Massachusetts, Florida has a statute governing choice of law in connection with bank accounts. Fla. Stat. Ann. § 655.55 (West 1992). [Note 7] See Sanchez v. Sanchez de Davila, 547 So. 2d 943, 945 (Fla. Dist. Ct. App. 1989) (it is "well settled" in Florida that the disposition of a joint bank account "is governed by the law of the situs of the account regardless of the domicile of

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any party to the account"); Annot., Conflict of Laws as to Disposition of and Relative Rights to Bank Deposits in the Names of More than One Person, 25 A.L.R.2d 1240, 1241-1242 (1952) ("The courts seem to agree that title to and rights in a bank deposit standing in the names of the depositor "and' another is governed by the law of the place where the deposit has been made and the account is kept"). But see Estate of Blake, 856 A.2d 1151 (D.C. 2004) (applying law of decedent's domicil, rather than law of estate where account opened, where District of Columbia had substantially adopted Uniform Nonprobate Transfers on Death Act, 8B U.L.A. 191 [Master ed. 1993 & Supp. 2005]). [Note 8] In these circumstances, we are not persuaded that Massachusetts law applies to the determination of ownership of the funds in the Florida account.

Conclusion. Because the record does not permit us to conclude that the Massachusetts accounts are in fact joint accounts, as alleged, it appears that the relief sought is not necessary. With respect to the Florida account, we are not persuaded that Massachusetts law applies to the ownership determination, and decline to grant the requested relief. See State St. Bank & Trust Co. v. Alden, supra at 1012 (declining reformation where futile). Accordingly, we remand the case to the Probate and Family Court for entry of a judgment dismissing the complaint without prejudice.

So ordered.

M. David Blake (Carolyn Martello with him) for the plaintiff.