On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9264-04.
The opinion of the court was delivered by: Lyons, J.S.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Collester and Lyons.
This case concerns the disposition of a joint bank account on the death of one of the parties to the account and the right to certain checks payable to decedent that were deposited to the joint account after decedent's death. Plaintiff, the Estate of Calvert Ostlund, Sr. (the "Estate"), appeals a judgment, finding that the balance of a joint account (the "account") established by decedent, Calvert Ostlund, Sr. (the "decedent"), and a number of checks payable to decedent and deposited by one of the defendants, Calvert Ostlund, Jr. ("Junior"), after the death of the decedent are the property of Junior.
Plaintiff claims that the funds in the account should have been property of the Estate to be equally distributed between decedent's five children and stepchildren according to decedent's will. Defendants submit that the account gave a right of survivorship to Junior and that at decedent's death, the account belonged to him exclusively.
The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.
At the time of his death, decedent left three biological children, Junior, Steven C. Ostlund, and Christine O. Roberts, (the "defendants"). He also left two stepchildren, Abbey Clements and Justin Waldstein from a marriage to his second wife, Barbara. At the time of his death, decedent resided alone in New York City, New York.
During his lifetime, decedent founded Cal Ostlund, Inc., a business in Kenilworth. Ownership of this business was transferred to Junior in 1989, although he continued to receive a salary from the company and frequently worked there.
Decedent created his last will and testament on February 13, 1995. Codicils dated December 28, 1996 and October 10, 1998 were subsequently executed by decedent, implementing a testamentary plan wherein decedent's estate would be left to his three biological children and his two stepchildren, in equal shares. The testamentary documents were reviewed by decedent's New York estate attorney, Stanley Gilbert, for purposes of drafting the second codicil.
Decedent's will was reciprocal with the will of his wife, Barbara, who predeceased him in 1999. At the time of her death and as a result of a meeting with Gilbert, J.P. Morgan Chase representatives, Junior, and decedent's accountants, decedent disclaimed his right to take under her will, allowing all five children to inherit from her will equally.
On September 8, 1999, decedent opened the account with First Union Bank in his own name as sole depositor under account number 8882582104. On May 3, 2001, decedent added Junior's name to the account. It is this account that is in dispute. At the time of decedent's death, the account had a value of approximately $323,847. During his life, funds from the account were used to pay decedent's daily expenses.
Decedent died on May 16, 2003 at seventy-seven years of age. Twelve days after decedent's death, the following eight checks totaling $53,559.78 were deposited into the account by Junior as opposed to delivering them to J.P. Morgan Chase, the executor of decedent's estate:
1. Social security check made payable to Calvert Ostlund, Sr. in the sum of $1,925 representing April 2003 payment;
2. Check from Cal Ostlund, Inc. made payable to Calvert A. Ostlund, Sr., dated April 30, 2003 ...