IN RE ESTATE OF SZOREK
551 N.E.2d 697 (1990)
NATURE OF THE CASE: This is an appeal from an award of attorney fees and costs in favor
of Liberty Savings and Loan Association (D), and against Judy Aust (P) following a hearing
on a declaratory judgment action for the recovery of funds on deposit in a certificate of
deposit in the names of decedent and P as joint tenants with right of survivorship.
FACTS: Walter Szorek died intestate. Prior to his death and at the direction of Szorek, P
transferred $72,000 of Szorek's funds to a certificate of deposit with D. The certificate of
deposit account was opened on February 6, 1987, in the names of Walter Szorek and P as joint
tenants with right of survivorship. Upon Szorek's death, P attempted to collect the funds
but was told by D because of a discrepancy of Szorek's date of birth on the signature card
and his date of birth on the death certificate, they would not pay the funds to her. The
public administrator opened a probate estate and was appointed administrator by the court.
On August 3, 1987, the administrator filed a petition to recover assets for the joint tenant
certificate of deposit funds held by D with notice served on D but without notice served on
P. The record discloses that notice to plaintiff was misaddressed, not delivered, and
returned to sender. On August 3, 1987, P filed a declaratory judgment suit in chancery
against D to recover the joint tenancy funds. The trial judge ordered D to turn over the
entire account balance plus accrued interest to P except for the sum of $3,500 reserved
pending a hearing on D's petition for fees and costs. The trial judge awarded defendant the
sum of $3,757.39, for attorney fees ($3,647) and costs ($110.39) to be paid from the funds
reserved and the balance to be paid by P. P appealed challenging the award of costs and fees
to D.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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