Generally, and in the past, the most important factor in determining whether a joint account is with rights of survivorship is whether the bank signature card establishing the account identifies the interests of the parties as being with rights of survivorship. Obtaining a physical copy of the signature card from a bank can be difficult as a result of numerous bank mergers and the passage of time from when the account was created.
Additionally, Section 675 of the NY Banking Law creates a presumption that a bank account created in the name of two or more persons which is to be paid to either of them or the survivor, in the absence of any evidence of fraud and /or undue influence will vest title to the survivor named on the account. The party seeking to challenge title to the account passing to the survivor has the burden of proving that undue influence and/or fraud existed.
Historically, producing a signed bank signature card containing the requisite statutory language of Section 675 of the Banking Law has been sufficient to create the presumption (although rebuttable) that the survivor is entitled to the remaining account proceeds upon the death of the joint tenant. However, in recent years when the bank signature card cannot be obtained, the courts, in determining whether the account has survivorship rights, look at other extrinsic evidence in making said determination.
For example, the bank representative’s recollection of advising the account holder that the balance in the account would be paid to the survivor upon the death of the other account holder and/or that the bank has a policy that all joint accounts are survivorship accounts, may serve as extrinsic evidence that the account was a joint account with rights of survivorship. The courts have also relied on electronic signature cards having the designation "J" as in "joint account" as evidence in support of the presumption under Section 675 of the Banking Law.
Additional factors the courts have relied upon in support of the presumption of survivorship rights are a joint holder making withdrawals from the account for his or her sole benefit; the decedent receiving statements and cancelled checks for the account; and the absence of evidence that the account holder was incapacitated or the victim of undue influence and/or fraud at the time the account was opened.
Obviously, having extrinsic factual evidence that establishes the intent to create a joint account with rights of survivorship is of great value. However, in my opinion, the best assurance one can have is a copy of the bank signature card, from the time the account was opened, containing the statutory language. This is, in my opinion, the best evidence for warding off any challenges to the survivorship nature of the account upon the death of a joint tenant.