Present: All the Justices 

MARK STEVEN JAMPOL, 

EXECUTOR OF THE ESTATE OF 

MARY FRANCES MAROIS, DECEASED 

OPINION BY JUSTICE A. CHRISTIAN COMPTON 

v. Record No. 990334 January 14, 2000 

MARY VIRGINIA FARMER, ET AL. 

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH 

H. Thomas Padrick, Jr., Judge 

 In this banking and finance case, the controversy is over 

ownership, following a depositor's death, of several 

certificates of deposit. 

 Appellant Mark Steven Jampol, executor of the estate of 

Mary Frances Marois, deceased, filed a bill of complaint, later 

amended, seeking guidance to determine the ownership of four 

certificates of deposit (CDs) issued in Virginia Beach to Mrs. 

Marois as "Depositor" by Wachovia Bank (formerly Jefferson 

National Bank). The executor had taken possession of the CDs 

following the decedent's death; she had been the sole owner of 

the instruments. 

 Appellees Mary Virginia Farmer (the decedent's daughter) as 

well as Marietta Elizabeth Farmer Marsten and Laureen Frances 

Farmer (the daughter's children) were parties defendant in the 

bill. Also named as defendants, but not appearing on appeal, 

were the decedent's brother and three other grandchildren. 
Appellee Wachovia Bank was added as a defendant in the amended 

bill. 

 The pleadings in the cause raised the question whether the 

estate, on the one hand, or the daughter and the grandchildren, 

on the other hand, owned the certificates. The dispute was 

generated because the percentages of the decedent's funds 

passing to her beneficiaries were materially different under her 

will than under certain of the CDs. 

 Following referral, a commissioner in chancery considered 

testimonial and documentary evidence during two hearings. In 

his report, the commissioner recommended that the chancellor 

enter a decree establishing the estate's ownership of the 

certificates. 

 Subsequently, the chancellor sustained exceptions to the 

commissioner's report that were filed by the decedent's daughter 

and her children. In a November 1998 final decree, the trial 

court ruled that the estate had no ownership interest in any of 

the CDs and directed the bank to pay the proceeds to the 

daughter and the grandchildren. The executor appeals. 

 The facts are undisputed. On October 11, 1994, the bank 

issued four, five-year CDs to the decedent. Three of the CDs 

were in the amount of $33,333.34 each and the fourth was in the 

amount of $5,000. 

2
 Typed on the face of the printed-form CDs were the names of 

P.O.D. payees. A "P.O.D. payee" is "a person designated on a 

P.O.D. account as one to whom the account is payable on request 

after the death of one or more persons." Code § 6.1-125.1(11). 

A "P.O.D. account," as pertinent here, is "an account payable on 

request to one person during lifetime and on his death to one or 

more P.O.D. payees." Code § 6.1-125.1(10). 

 The payee on the first CD was the decedent's daughter. The 

payee on the second and third CDs, respectively, was each of the 

daughter's children. The payees on the fourth CD were the three 

other grandchildren. 

 Some time after issuance of the original CDs, the decedent 

lost or misplaced all four certificates. The decedent went to 

the bank in person and the bank reissued the certificates 

without the P.O.D. designations. On October 30, 1995, the 

decedent again went to the bank and reported that the reissued 

CDs had been lost or misplaced. The bank then reissued the 

certificates that are at issue here, without any P.O.D. 

designation. 

 In each instance, the replacement certificates showed the 

same amount, the same account number, the same issue date, the 

same maturity date, and the same rate of interest as the 

original certificates. The replacements, however, carried 

different serial numbers from the originals. 

3
 At the time of the 1995 reissuances, the decedent executed 

four form affidavits acknowledging to the bank receipt of "a 

duplicate or replacement for the original certificate described 

below." Described "below" in each instance was the first 

reissued certificate. 

 The decedent also signed the face of each CD on a line 

adjacent to her taxpayer identification number and beneath a 

paragraph labeled "TIN Certification." However, the record 

contains no document signed by the decedent directing the bank 

to remove the P.O.D. beneficiaries from the certificates. 

 The evidence showed that during the period from October 

1994, when the original CDs were issued, until her death in 

September 1997, the elderly decedent was forgetful and often 

misplaced such items as important papers, checkbooks, and her 

safe deposit box key. The family had a "close" relationship, 

and her daughter saw her "almost every day." 

 Bank employees testified about the normal procedure used 

when a CD is lost or misplaced. An affidavit is obtained from 

the depositor and a replacement certificate, ordinarily an exact 

duplicate of the certificate it replaces, is issued. If either 

the interest rate or the dollar amount is to be changed, the 

certificate is cancelled and a new certificate, not related to 

the prior one, is issued. 

4
 If, however, the purchaser of the certificate tells the 

bank employee to omit a P.O.D. provision, that fact is not 

documented and the employee simply issues the replacement 

certificate without the P.O.D. provision. 

 On appeal, as in the court below, the daughter and her 

children (collectively, the daughter) rely upon Code § 6.1-

125.6. That statute deals with rights of survivorship for 

various accounts, including P.O.D. accounts. It states that 

such rights "are determined by the form of the account at the 

death of a party," the original payee in this case. See Code 

§§ 6.1-125.5(B)(2) and -125.1(7). 

 Section 6.1-125.6 also provides: 

"This form may be altered by written order given by a 

party to the financial institution to change the form 

of the account or to stop or vary payment under the 

terms of the account. The order or request must be 

signed by a party, received by the financial 

institution during the party's lifetime, and not 

countermanded by other written order of the same party 

during his lifetime." 

 The trial court adopted the daughter's argument that, under 

§ 6.1-125.6, the P.O.D. accounts could only be changed to nonP.O.D. accounts if the decedent, during her lifetime, signed a 

written order to the bank requesting that the bank change the 

form of the account or vary payment of the account. 

Accordingly, the trial court, in sustaining the exceptions, 

ruled "that the mere signing by the Decedent of the replacement 

5
certificates issued because the original certificates of deposit 

were lost did not constitute a 'written order [. . .] to change 

the form of the account' as required by . . . § 6.1-125.6." 

Thus, the chancellor held that the P.O.D. payees on the original 

CDs were entitled to payment of the proceeds of the second 

replacement CDs. This was error. 

 The standard of review to be applied under these 

circumstances is settled. When a chancellor has disapproved a 

commissioner in chancery's report, we must determine whether, 

under a correct application of the law, the evidence supports 

the findings of the commissioner or the conclusions of the 

chancellor. Hill v. Hill, 227 Va. 569, 577, 318 S.E.2d 292, 

296-97 (1984); First Nat'l Bank of Martinsville v. Cobler, 215 

Va. 852, 854, 213 S.E.2d 800, 802 (1975). 

 The foregoing statute makes clear that a determination of 

the survivorship rights under a certificate of deposit begins 

with an examination of "the form of the account at the death of" 

the owner. In the present case, the CDs at issue contained no 

P.O.D. provisions. Thus, according to the instruments, the 

decedent was the owner. 

 However, prior certificates, which the certificates at 

issue replaced, contained P.O.D. designations. Nevertheless, 

and contrary to the daughter's argument and contrary to the 

trial court's ruling, these P.O.D. provisions will not be read 

6
into the present certificates to change the terms existing upon 

the decedent's death. 

 We hold the language of § 6.1-125.6 does not mandate that a 

change in the terms of a CD must be made with a writing. 

Rather, the statute merely provides that the form of the account 

"may" be altered by a written order, not that the form "shall" 

be so altered. 

 Nothing in the statute prevents a depositor or owner of 

such a CD from accomplishing a change of terms by appearing in 

person at the financial institution and orally requesting the 

change. Indeed, the procedures in place at Jefferson National 

Bank when these certificates were reissued required no writing 

to change a P.O.D. designation. 

 However, an owner may accomplish a change in a CD's terms 

without appearing in person at the financial institution. In 

such a situation, the owner may submit a written order 

requesting the change if the owner signs the order, if the order 

is received by the bank during the owner's lifetime, and if the 

owner does not countermand the order by another writing. This 

is not such a case. 

 The record is silent about the discussion between the 

decedent and bank employees both at the time the first 

replacement CDs were issued, which did not carry P.O.D. 

7
designations, and at the time the second replacements were 

issued, which also did not provide for P.O.D. beneficiaries. 

 As the commissioner pointed out, "Whatever we may guess, or 

think, or speculate, or believe, there is simply no evidence of 

a mistake by the bank or of Mrs. Marois being of a mental state, 

or capacity, that she would be unable to decide to have the POD 

provisions removed by requesting that action of the bank 

employee when requesting replacement certificates. . . . Given 

that all of the parties concerned were members of her close 

family, it would be as logical to make the change as it would 

have been to leave things as they were." 

 In sum, as the commissioner found, the record is devoid of 

evidence that the decedent intended to leave the certificates 

unchanged, and the burden to prove this fact was upon those who 

challenged the form of the accounts as they existed at her 

death. 

 Accordingly, we conclude that the trial court erred in 

disapproving the commissioner's report. Thus, the judgment 

below will be reversed, and final judgment will be entered here 

decreeing the estate's ownership of the instruments in question. 

Reversed and final judgment. 

 

8