Jeannette Wakim, as personal representative v. Christopher Pavlic, as personal representative, etc. , 239 W. Va. 681 ( 2017 )


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  •        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
    September Term 2017
    FILED
    _______________               September 21, 2017
    released at 3:00 p.m.
    No. 16-0906                       RORY L. PERRY, II CLERK
    SUPREME COURT OF APPEALS
    _______________                        OF WEST VIRGINIA
    JEANNETTE WAKIM, as personal representative
    of the Last Will and Testament of Lawrence J. Belt,
    Defendant Below, Petitioner
    v.
    CHRISTOPHER PAVLIC, as personal representative
    of the Last Will and Testament of Lila Belt,
    Plaintiff Below, Respondent
    _______________
    Appeal from the Circuit Court of Ohio County
    The Honorable Ronald E. Wilson, Judge
    Civil Action No. 13-C-89
    _____________
    REVERSED AND REMANDED
    _______________
    Submitted: September 13, 2017
    Filed: September 21 , 2017
    Robert G. McCoid, Esq.                   Elgine Heceta McArdle, Esq.
    McCamic, Sacco & McCoid, PLLC            McArdle Law Office
    Wheeling, West Virginia                  Wheeling, West Virginia
    Paul J. Harris, Esq.                     Counsel for the Respondent
    Shawn L. Fluharty, Esq.
    Harris Law Offices
    Wheeling, West Virginia
    Counsel for the Petitioner
    JUSTICE KETCHUM delivered the Opinion of the Court.
    SYLLABUS BY THE COURT
    1. “A joint tenancy is created in money deposited in a bank in the names of two or
    more persons, ‘in form to be paid to either,’ under Code, 31-8-23 [currently W.Va. Code,
    31A-4-33], and the same may be withdrawn by any of the persons so named. In the event
    of the death of one or more of such depositors, a sole survivor is entitled to the entire
    amount remaining in such deposit.” Syl., Lett v. Twentieth Street Bank, 138 W.Va. 759,
    
    77 S.E.2d 813
    (1953).
    2. “Prior to the death of a donor depositor, a rebuttable presumption exists under
    the provisions of Code, 1931, 31A-4-33, as amended, that the ownership of the funds is
    joint, a presumption which may be overcome by competent evidence.” Syl. pt. 3, Dorsey
    v. Short, 157 W.Va. 866, 
    205 S.E.2d 687
    (1974).
    Justice Ketchum:
    This appeal concerns the disposition of funds withdrawn from joint bank accounts
    owned by Lawrence Belt and Lila Belt during their marriage. The funds were withdrawn
    from the joint accounts by Lawrence. Several months after the withdrawals, Lila filed for
    divorce but died while the divorce action was pending. The divorce action was dismissed
    with prejudice and without any rulings regarding any marital property. Lawrence died
    thereafter.
    Lawrence’s estate, through his executrix Jeannette Wakim (the petitioner), and Lila’s
    estate, through her executor Christopher Pavlic (the respondent), are now fighting over
    ownership of the funds Lawrence withdrew from the joint accounts before Lila filed for
    divorce. The funds are currently in an IOLTA account held on Lawrence’s behalf.
    The Circuit Court of Ohio County split the funds in half, not on the basis of divorce
    law, but simply to prevent the perceived unjust enrichment of Lawrence’s estate. Wakim,
    as executrix of Lawrence’s estate, appeals to this Court from the circuit court’s decision.
    We reverse the circuit court and conclude that Lawrence had the right to withdraw the
    funds from the joint accounts by virtue of W.Va. Code, 31A-4-33 [1994], which states that
    1
    bank deposits may be paid to any named depositor, or the survivor of them, of an account
    held in joint tenancy. Here, the bank accounts were joint accounts with the right of
    survivorship, and we note that withdrawals were made by both Lawrence and Lila,
    independently, during the marriage. The funds withdrawn by Lawrence during the marriage
    became the sole property of Lawrence upon their withdrawal.
    The circuit court’s ruling splitting the funds in half and granting summary judgment
    in favor of Lila’s estate is reversed; judgment is entered in favor of Wakim as executrix of
    Lawrence’s estate; and this action is remanded with directions to enter an order releasing the
    funds in the IOLTA account to Lawrence’s estate.
    I. Factual Background
    Lawrence and Lila were married on November 29, 1975. Although no children were
    born of the marriage, Lawrence had at least one child from a previous marriage and two
    granddaughters, Jennifer Swiger and petitioner Wakim. Lila had three children from a
    previous marriage: respondent Christopher Pavlic, Mark Pavlic and Karen Cutter. Lawrence
    and Lila appeared to be financially secure during their 36 year marriage.
    On October 5, 2006, Lila executed a Will in which she devised and bequeathed her
    entire estate to Lawrence. She named as co-executors Christopher Pavlic and Mark Pavlic.
    2
    The Will provided that, if Lawrence were to predecease Lila, her estate would go to
    Christopher and Mark, share and share alike. Although Lila’s daughter, Karen Cutter, was
    not included in the Will, Lila executed a document, also dated October 5, 2006, stating that
    Karen is mentally incompetent and providing that, if Lawrence is deceased, the co-executors
    would have the discretion to include Karen in the proceeds of Lila’s estate.
    On September 12, 2008, Lawrence executed a Will in which he devised and
    bequeathed his entire estate to Lila. Lawrence named Lila as executrix. The Will provided
    that, if Lila were to predecease Lawrence, his estate would go to his granddaughters,
    petitioner Wakim and Jennifer Swiger, share and share alike. Wakim was named as an
    alternate executrix.
    A. The Joint Accounts and Withdrawals
    During the marriage, Lawrence and Lila opened a number of joint bank accounts
    between 1999 and 2006 in their names with the right of survivorship. In June 2009, Lila was
    diagnosed with cancer. Thereafter, on July 30, 2010, Lila opened two additional joint
    accounts: the first in the names of Lawrence, Lila or Mark Pavlic and the second in the
    names of Lawrence, Lila or respondent Christopher Pavlic.
    3
    In July 2011, Lila learned that her cancer was terminal. On July 15, 2011, Lawrence,
    age 95, withdrew $242,773.62 from the joint accounts and placed the funds in new accounts
    opened in his name only at the same banking institutions. Petitioner Wakim, Lawrence’s
    executrix, asserts that Lawrence made the withdrawals to protect the assets upon learning that
    Lila had transferred at least $68,819.30 to respondent Pavlic without Lawrence’s knowledge
    and consent. Wakim contends that Lila, in her 80s, was under the undue influence of
    respondent Pavlic. Conversely, Pavlic contends that Lawrence was under the undue
    influence of petitioner Wakim.1
    B. The Divorce Action and New Will
    On October 17, 2011, Lila filed a divorce action in the Family Court of Ohio County
    on the ground of irreconcilable differences.2 During the divorce proceedings, Lila filed a
    motion for emergency, temporary relief alleging that Lawrence had removed in excess of
    $200,000.00 in marital assets from the joint accounts. Lila sought an order directing
    Lawrence to transfer half of the funds to Lila.
    1
    The circuit court found that Wakim and Pavlic were well aware of Lawrence and
    Lila’s respective ages, Lawrence’s life expectancy, and Lila’s terminal illness.
    2
    The action was styled In re: The Marriage of Lila L. Belt v. Lawrence John Belt,
    Civil Action No. 11-D-367 (Family Court of Ohio County - 2011).
    4
    Later, on October 21, 2011, Lila executed a new Will revoking her 2006 Will and
    disinheriting Lawrence. The new Will stated: “I am currently married to Lawrence J. Belt,
    but have retained an attorney to file for divorce. I leave Lawrence J. Belt nothing. I
    disinherit him entirely.” The new Will gave $1.00 to Mark Pavlic and devised and
    bequeathed the remainder of the estate to respondent Christopher Pavlic. Respondent Pavlic
    was designated as sole executor. Although the new Will provided remote contingencies for
    minors or incompetents, the new Will made no reference to Lila’s daughter, Karen Cutter.
    The Family Court entered a temporary order on February 9, 2012, directing that
    Lawrence place the funds he withdrew in escrow. As a result, the funds withdrawn by
    Lawrence from the joint bank accounts were deposited in an IOLTA account maintained by
    an attorney on Lawrence’s behalf.3 Soon after, on February 21, 2012, Lila, age 84, died
    while the divorce action was pending. Upon the filing of a suggestion of death, the Family
    Court entered an order on March 28, 2012, dismissing the divorce action “with prejudice.”
    The Family Court made no rulings regarding the money Lawrence withdrew from the joint
    bank accounts prior to dismissing the divorce action.
    3
    See Rule 1.15. of the West Virginia Rules of Professional Conduct regarding the
    safeguarding of client property in an IOLTA account (“Interest on Lawyers Trust
    Account”).
    5
    II. Procedural Background
    In March 2013, Pavlic, as Lila’s executor under the new Will, filed a declaratory
    judgment action in the Circuit Court of Ohio County.4 Pavlic alleged that Lawrence, under
    the undue influence of petitioner Wakim, “transferred, dissipated, or otherwise diminished”
    funds belonging to the marital estate, thereby denying Lila access thereto.
    Pavlic further alleged that, in view of Lila’s new Will disinheriting Lawrence,
    Lawrence’s share of the funds would be limited to his elective share of Lila’s estate as
    determined by W.Va. Code, 42-3-1 [1995]. That statute provides for a surviving spouses’s
    right to an elective share, calculated in proportion to the length of the marriage, against
    disinheritance under the decedent’s Will. The parties agree that Lawrence’s elective share
    would be 50%.5        Consequently, Pavlic alleged that Lawrence’s remedy upon being
    4
    The complaint was styled Christopher Pavlic, as personal representative of the
    Last Will and Testament of Lila L. Belt v. Lawrence John Belt, an individual, and Paul
    Harris, as trustee for monies owned by Lawrence John Belt located within a client Trust
    Account, and Jeannette Wakim, an individual, Civil Action No. 13-C-89 (Ohio County ­
    2013). The record indicates that Wakim, individually, was dismissed from the action.
    5
    W.Va. Code, 42-3-1(a) [1995], states in part:
    The surviving spouse of a decedent who dies domiciled in this State
    has a right of election, against either the will or the intestate share, under
    the limitations and conditions stated in this part, to take the elective-share
    percentage of the augmented estate, determined by the length of time the
    spouse and the decedent were married to each other, in accordance with the
    following schedule: * * * 15 years or more - 50% of the augmented
    6
    disinherited would be through probate court, rather than claiming ownership of the funds
    through his prior unilateral transfers from the joint bank accounts. Pavlic, therefore, asked
    the circuit court to impose a constructive trust on the funds held in the IOLTA account
    pending the outcome of probate proceedings regarding Lila’s new Will.
    Lawrence filed a motion to dismiss which alleged that, because the divorce action was
    dismissed with prejudice, the current action is barred by collateral estoppel. In response,
    Pavlic asserted that the current action, which challenges the validity of Lawrence’s transfers
    from the joint bank accounts, seeks declaratory relief rather than relief under any domestic
    relations statute, and, therefore, collateral estoppel does not apply. The circuit court agreed
    with Pavlic and denied the motion to dismiss. Lawrence then filed an answer alleging that,
    as an owner of the joint bank accounts, he was entitled to all of the funds he withdrew by
    operation of law.6
    estate.
    6
    Lawrence also filed a counterclaim and alleged that Lila lacked the mental
    capacity in October 2011 to form a testamentary intent to execute the new Will.
    Therefore, according to Lawrence, the new Will should be set aside and Lila’s estate
    probated under her 2006 Will in which she devised and bequeathed her entire estate to
    Lawrence. In support, Lawrence alleged (1) that Lila’s new Will was the result of
    Pavlic’s undue influence; (2) that Pavlic assumed responsibility for Lila when she became
    ill with cancer but failed to provide a clean and safe environment for her care; and (3) that
    Lila had transferred significant funds to respondent Pavlic, Mark Pavlic, and their
    children.
    7
    In December 2013, the circuit court placed a temporary constructive trust on the funds
    placed in the IOLTA account until the resolution of Lila’s estate in probate. Thereafter,
    Pavlic filed a motion for summary judgment which alleged that Lila’s estate is entitled to the
    funds in the IOLTA account, subject to Lawrence’s 50% elective share.
    On October 29, 2015, the circuit court granted Pavlic’s motion for summary judgment
    and confirmed the constructive trust imposed on the funds in the IOLTA account. The circuit
    court concluded that, at the time of Lawrence’s withdrawals on July 15, 2011, the funds
    would have been marital assets in the divorce action that had been previously dismissed
    without any ruling on the parties’ property, including the joint bank accounts. The circuit
    court determined that 50% of the funds in an amount to be determined belonged to Lila’s
    estate, with the remaining 50% constituting Lawrence’s elective share of Lila’s estate under
    W.Va. Code, 42-3-1 [1995].
    Lawrence alternatively alleged in the counterclaim that, if Lila’s new Will is found
    to be valid and enforceable, that Lawrence be permitted to execute his right to his elective
    share pursuant to W.Va. Code, 42-3-1 [1995]. In that regard, Lawrence emphasized that
    respondent Pavlic had already received a legacy from Lila’s estate because of the funds
    transferred to Pavlic prior to Lila’s death.
    The circuit court ruled that neither Lila’s 2006 Will nor the new 2011 Will were
    relevant to the issue of Lawrence’s withdrawals from the joint accounts. We agree. The
    current declaratory judgment action concerns the withdrawn funds presently in the
    IOLTA account. As discussed herein, Lila’s new Will and Lawrence’s elective share are
    not dispositive in this appeal.
    8
    The circuit court found no evidence of undue influence but noted that, in the divorce
    action, Lila raised the issue of ownership of the funds Lawrence had withdrawn. The circuit
    court stated that the type of joint accounts involved here “are opened with the intention that
    they will jointly benefit both the husband and the wife, and with a further assumption that
    when the joint accounts are opened it is not the intention of either spouse to unjustly enrich
    the other or to deprive the child of either spouse their fair share of their parents’ money.”
    On March 2, 2016, the circuit court entered an order finding the total funds withdrawn
    to be $242,773.62 and awarding $121,386.81 to Lila’s estate and $121,386.81 to Lawrence.
    Lawrence died on April 1, 2016. The circuit court entered an order on August 29, 2016,
    clarifying its prior rulings, therein stating that both sides were to receive $121,386.81,
    “without any further addition to Lawrence or any reduction to Lila’s estate.” Lawrence’s
    executrix, petitioner Wakim, appeals to this Court from the rulings of the circuit court.
    III. Standards of Review
    Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, a motion for
    summary judgment may be filed in a declaratory judgment action. A declaratory judgment
    thus entered is reviewed by this Court de novo. Syllabus point 3 of Cox v. Amick, 195 W.Va.
    608, 
    466 S.E.2d 459
    (1995), holds: “A circuit court’s entry of a declaratory judgment is
    9
    reviewed de novo.” Accord syl. pt. 1, Flanagan v. Stalnaker, 216 W.Va. 436, 
    607 S.E.2d 765
    (2004).
    In Cox, this Court observed that, because the purpose of a declaratory judgment action
    is to resolve legal questions, “a circuit court’s ultimate resolution in a declaratory judgment
    action is reviewed de novo; however, any determinations of fact made by the circuit court in
    reaching its ultimate resolution are reviewed pursuant to a clearly erroneous standard.” 195
    W.Va. at 
    612, 466 S.E.2d at 463
    . See W.Va. Code, 55-13-7 [1941] (Orders, judgments and
    decrees entered under the West Virginia Uniform Declaratory Judgments Act “may be
    reviewed as other orders, judgments and decrees.”).
    IV. Discussion
    A. The Terminated Divorce Action
    The circuit court, in the declaratory judgment action, placed a constructive trust on the
    IOLTA account and awarded half of the funds to Lila’s estate and half of the funds to
    Lawrence’s estate. The circuit court reasoned that the funds were marital assets and, without
    the constructive trust, Lawrence would have been unjustly enriched by the withdrawals. See
    Annon v. Lucas, 155 W.Va. 368, 382, 
    185 S.E.2d 343
    , 352 (1971) (“A constructive trust is
    substantially an appropriate remedy against unjust enrichment.”).
    10
    Petitioner Wakim contends that, in awarding Lila’s estate half of the funds, the circuit
    court committed error by posthumously reviving the divorce action even though no divorce
    was granted and no order was entered regarding the property rights of the parties. Wakim
    asserts that Lawrence, as an owner of the joint accounts, was entitled to withdraw the funds
    by operation of law. Moreover, Lawrence’s complete ownership of the funds was confirmed
    by his survivorship upon Lila’s death. Wakim further asserts that Lila had also withdrawn
    funds from the accounts and that Lawrence’s withdrawals were made to protect the assets
    when he learned that Lila had transferred at least $68,819.30 to Pavlic.7 Pavlic, however,
    emphasizes that Lawrence and Lila agreed during the divorce action that no monies would
    be removed from the IOLTA account without the other’s consent, and, as such, a constructive
    trust was warranted which ultimately resulted in an equitable distribution of $121,386.81 to
    each estate in the declaratory judgment action.
    It is well established that actions for divorce are personal and terminate upon the death
    of a party. Only those property rights finally adjudicated in a family court decree survive the
    divorce. In syllabus point 1 of Bridgeman v. Bridgeman, 182 W.Va. 677, 
    391 S.E.2d 367
    (1990), this Court held: “Divorce actions, and appeals therefrom, abate at the death of a
    7
    In an affidavit dated December 4, 2014, Wakim stated that Lawrence left some
    funds in the accounts for the care and maintenance of Lila and, in addition, “made
    monthly contributions to her care, as well as paid Lila Belt’s medical bills.”
    11
    party, except as to property rights.” Accord syl. pt. 4, Zikos v. Clark, 214 W.Va. 235, 
    588 S.E.2d 400
    (2003). In Bridgeman, a divorce decree was entered, and the husband was
    ordered to pay alimony in the lump sum of $68,500.00, plus attorney fees and costs. The
    husband died shortly after the divorce decree was entered. Nevertheless, this Court in
    Bridgeman affirmed the ruling of the circuit court that the alimony award was chargeable
    against the husband’s estate.8 Similarly, in Zikos v. Clark this Court remanded an action to
    the lower court for a determination of alimony arrearages payable to the wife’s estate. In
    Zikos, the wife died after the entry of the divorce decree which directed the husband to pay
    alimony in the amount of $300.00 per month.
    The circumstances here are very different. Lila died during the divorce proceedings,
    and no divorce decree was entered. More importantly, no marital or individual property
    rights were adjudicated in the divorce proceeding before it was dismissed. Although the
    funds Lawrence withdrew were placed in the IOLTA account pending the outcome of the
    divorce action, a constructive trust on the funds was not contemplated until the filing of the
    current declaratory judgment action long after Lila died and the divorce action was
    terminated. The constructive trust was imposed in the declaratory judgment action pursuant
    8
    See Whitlock ex rel. Pack v. Whitlock, 
    2013 WL 2462167
    (W.Va. 2013) (Under
    Bridgeman, an action may be maintained for “attendant property rights, if those rights
    survive a party’s death and are enforceable in favor of, or against, a party’s estate.”).
    12
    to the circuit court’s December 2013 and October 2015 orders. The circuit court then
    awarded half the funds to each estate on the basis of unjust enrichment, not on the basis of
    divorce law. See, e.g., W.Va. Code, 48-5-508 [2001] (authorizing a constructive trust to
    preserve property during pendency of divorce action).
    This Court concludes that the divorce action is of no moment in resolving the issue
    of Lawrence’s withdrawals from the joint bank accounts. The circuit court committed error
    to the extent it posthumously revived the divorce action in its rulings below. See Francis M.
    Dougherty, Annotation, Effect of Death of Party to Divorce Proceeding Pending Appeal or
    Time Allowed for Appeal, 
    33 A.L.R. 4th 47
    § 2 (1984) (Generally, a cause of action for
    divorce is purely personal, and “if an action for a divorce is commenced, and one of the
    parties dies thereafter but before the entry of the final decree, the action abates.”).
    Moreover, the imposition of the constructive trust was unwarranted. The record
    reveals, and the circuit court specifically found, no undue influence. Nor does the record
    indicate that Lawrence or Lila lacked the mental capacity to make their respective
    withdrawals from the joint accounts or to make and execute their Wills. Furthermore, the
    record does not show that Lawrence diminished the withdrawn funds for his personal use.
    To the contrary, petitioner Wakim maintains that Lawrence left some funds in the accounts
    for Lila’s care, made later contributions for Lila’s benefit, and paid her medical bills. See
    13
    n. 
    7, supra
    . In In Re: Shiflett, 200 W.Va. 813, 821 n. 28, 
    490 S.E.2d 902
    , 910 n. 28 (1997),
    we observed that a constructive trust is an implied trust and arises by operation of law “when
    equity so demands.” In the current matter, the circuit court overreached its authority in
    imposing the constructive trust on the IOLTA account.9
    B. The Joint Accounts and Withdrawals
    During the marriage, Lawrence and Lila opened a number of joint accounts with the
    right of survivorship. On July 15, 2011, Lawrence withdrew funds from the joint accounts
    and opened new accounts in his name only at the same banking institutions. According to
    petitioner Wakim, Lawrence made the withdrawals to protect the assets upon learning that
    Lila transferred at least $68,818.30 to Pavlic without Lawrence’s knowledge and consent.
    Regardless of Lawrence’s intent, or Lila’s intent, the withdrawals in question made
    by Lawrence, were governed by W.Va. Code, 31A-4-33(b) [1994], which states:
    When a deposit is made by any person in the name of such depositor
    and another or others and in form to be paid to any one of such depositors, or
    the survivor or survivors of them, such deposit, and any additions thereto,
    made by any of such persons, upon the making thereof, shall become the
    9
    See 76 Am. Jur.2d Trusts § 169 (2016): “[T]he doctrine of constructive trust
    does not allow a court to disregard existing legal rights merely to fashion a result that it
    deems fairer than that created by the parties. ‘Unfairness’ is not reason enough to impose
    a constructive trust.”
    14
    property of such persons as joint tenants. All such deposits, together with all
    interest thereon, shall be held for the exclusive use of the persons so named,
    and may be paid to any one of them during the lifetime of them, or to the
    survivor or survivors after the death of any of them.
    In a sworn statement, bank employee Dorothy Billetter indicated in layman’s terms
    that the joint accounts were in a form which permitted either Lawrence or Lila to transfer
    money or redeem certificates of deposit, “whatever they wanted to do.”
    The syllabus point in Lett v. Twentieth Street Bank, 138 W.Va. 759, 
    77 S.E.2d 813
    (1953), holds:
    A joint tenancy is created in money deposited in a bank in the names of
    two or more persons, “in form to be paid to either,” under Code, 31-8-23
    [currently W.Va. Code, 31A-4-33], and the same may be withdrawn by any of
    the persons so named. In the event of the death of one or more of such
    depositors, a sole survivor is entitled to the entire amount remaining in such
    deposit.
    See Koontz v. Long, 181 W.Va. 800, 802, 
    384 S.E.2d 837
    , 839 (1989) (citing Lett and noting
    that “when a party’s name is added as a joint tenant with the right of survivorship on a bank
    or like account, there is a presumption that the person adding the joint tenant’s name intends
    to make a gift of the funds in the account.”).
    15
    In syllabus point 3 of Dorsey v. Short, 157 W.Va. 866, 
    205 S.E.2d 687
    (1974), we
    stated: “Prior to the death of a donor depositor, a rebuttable presumption exists under the
    provisions of Code, 1931, 31A-4-33, as amended, that the ownership of the funds is joint,
    a presumption which may be overcome by competent evidence.” Accord syl. pt. 2, McComas
    v. McComas, 178 W.Va. 133, 
    358 S.E.2d 217
    (1987).
    There is no evidence that Lawrence, age 95, withdrew the funds in contemplation of
    divorce or that he depleted the funds thereafter. With relatively small deductions, the funds
    in question were transferred intact from the joint bank accounts to Lawrence’s personal
    accounts and then to the IOLTA account. Nor did Lawrence’s relationship to Lila reach the
    level of a fiduciary duty with respect to her illness. As the circuit court suggested, the joint
    bank accounts were opened for the benefit of both Lawrence and Lila, and Pavlic assumed
    responsibility for Lila as her illness progressed. Denying unjust enrichment, petitioner
    Wakim asserts on Lawrence’s behalf that Pavlic had already received substantial funds
    through transfers by Lila.10
    10
    Although Lawrence gave Wakim a power of attorney in 2011, it played no part
    regarding Lawrence’s July 15, 2011, withdrawals from the joint accounts. In the October
    29, 2015, order, the circuit court stated: “The power of attorney held by Jeannette Wakim
    is not relevant to this controversy because Lawrence Belt was the person who transferred
    all of the money from the joint tenancy account of Lila Belt and Lawrence Belt to his
    personal account.”
    16
    Pursuant to W.Va. Code, 31A-4-33(b) [1994], the funds in the joint bank accounts
    were non-probate assets jointly owned by Lawrence and Lila, and Lawrence had a right to
    withdraw the funds on July 15, 2011, as a matter of law. Lila’s withdrawals from the joint
    accounts were also proper as a matter of law. Upon her death on February 21, 2012,
    Lawrence was entitled to the balance of the funds left in the joint accounts by way of
    survivorship. The funds are not part of Lila’s Estate. We find no evidence, including the
    terminated divorce action or Lila’s new Will, which alters this result.
    V. Conclusion
    The withdrawals from the joint accounts by both Lawrence and Lila during the
    marriage were proper under W.Va. Code, 31A-4-33 [1994], pertaining to joint bank accounts
    with the right of survivorship. Consequently, the August 29, 2016, order of the Circuit Court
    of Ohio County is reversed, judgment is entered in favor of petitioner Wakim as executrix
    of Lawrence’s estate, and this action is remanded with directions to enter an order releasing
    the funds in the IOLTA account to the estate of Lawrence Belt.
    Reversed and Remanded.
    17