but i could be mistaken on the way it worked was that she had opened the account about two years before in two thousand and three so the account was already open it was her individual savings account then in july of two thousand and five about fourteen because it would appear to me from my understanding of the case law that while it's absolutely true that a writing is required for the statute i do not believe that a writing is required create a ballot trust in other words farmer's state bank and just to tell that he would like to include his girlfriend says if i'm not mistaken wright was created it was just all a little older  not have the benefit of the safe harbor of section five of the and that that's true we don't we don't try to claim the benefit of that safe harbor and say that we were somehow released when we made the payment because we were on notice at the time we made th was no additional research done under the dead set to distinguish between the affidavit of an employee or an officer about the business of the employer in which the lawyers are asked to whether that puts him within the judgment your opponent we can have a further conversation that would please your own it seems to me that if this were a closely held corporation let's say that i hope council we're all brothers and we start a company and one of us were to testify that we each owned one third of that company but we were testifying on behalf of the corporation based on what happened in that case i might have a correct the only area interest in the outcome when we contrast that for a moment though with the facts that we have here citibank is a there was a large the actual signature for that she signed on july twenty seventh of two thousand and five is found in the appendix to our brief at pages a six and a seven and then the bank kept the signed signature card this consistent with citibank does have people sign two different parts in this particular situation one was signed the question that presents i believe is whether that has any impact on its ability to been in and of ms abstain to do what she did in other words if the law is here so that we might execute on the intent of miss epstein as what should happen with her money and her assets when she dies trust but law is clear that the pond amental purpose is to try to understand the tent of the person who set up the account and to go forward and try to execute on that and the question then becomes has citibank done that whether or not we are able to rely on the safe harbor and get a release on section five of the act whether or not the writing is sufficient to meet section three of the act which i'll argue in a moment i believe it is the real have a card signed as a it provided that a conveyance the equivalent of a conveyance in trust with a lifetime interest reserve or something  presumption which permits counterevidence the a min which again has to be clear and convincing apparently under existing law now does this card that we're necessary is to understand him and of the benefactor and what it is that they're trying to do so it all hangs basically on matthew as well but doesn't that terrible because if it were just this car an art of the evidence to be drawn from eddie's own affidavit which the trial part chose to reject the question as i suppose if the trial court rejects the credibility of unless the evidence is undisputed and it is and it is the end let me explain right i mean by that i understand that they attack the credibility of what we put before the court to support our summ it and ms martinez testified that that that she went through all the steps that they normally go through i understand that there was also testimony from ms eight can talk about the fact that there are normally two cards signed and not one i submit to your honor into this or that that does not reflect on or take away from it probably a better way to look at it does not take away from the impact of the fact that mr smith said it that's the case what do we need to trail us for and what do we need the original new jersey case i guess i'm up if we're talking about the supremacy of the card in th it and consequently carries the day as i understand but why in one case for example if there was a writing to evidence the intent of the person who is the account holder during their life time that is what shifts the burden it does not talk about a specific writing it does not talk about any particular points that have to be in the writing there has to be a writing evidence indiantown and now what we know that there is a right because we have the art that she changed that day for no other apparent reason but to make her nephew her beneficiary after she died of those funds that shifts the burden over to the administrator to determine by to prove by clear the one hand it would mean that i don't know that that is the better reading of the case it seems to me totten was a common law principle common law that you know it came down from new york and then and then to betray the case here in illinois it seems to me that to the extent that the legislature decided that they wanted to you know designate for payable on death accounts that it be in whiting i did not see anything explicit in what the legislature did saying down there that it was not going to permission  signature and what does the signature cards say the signature card gives first signature it says i t f s as according you know as it to the president or l you know there would be no purpose for her to do that if that was not if look at these cases and this is what's required of him he is right in other words that first of all a lost as opposed to a one death account one would need to have the writing designated beneficiaries this way and that it certainly doesn't say that no one can say poorly who might be the beneficiary closest living relative of of the deceit surely her sister who was the administrator of the state was the closest second of all in the right case again they opened a separate account invited to bring in these so called monthly statements that were sent in after or before the definite yes to this yes forget about the whether it's a case which i'm sure you're going to want to and pretend that watson's i'm sure what theory under what standard of proof or what have you do we get to your summary jack well and in your face your honor when i was a law school and a few years ago i remember my father fester saying hard cases make bad law and this i think qualifies where and as a last as a former law school teacher i can tell you it means hard cases require additional research well in this case you know your honor asking citibank to pay twice make qualified this is a hard case but i think that i think that there are the required to do a little more than what they got done in this case and i think that if you do not affirm judge judge kennedy's decision here i think bad law will be created number one you might as well throw rocks off the dead man's act as it applies to corporations because the only way citibank can speak in this case and remember there are an interest they decided to become judge and jury in this case any money in this case but she's speaking and behalf of the party in interest and she's been instructed you know what your affidavit how this affidavit is even and peach by her fellow employees  first principles generally do not provide sufficient data to cite a case unless there are no closer cases that and second of all we probably wouldn't have a problem if they hung on to the money and charles martin as his affidavit was not blocked by did that man say but now that we they've decided to become judge and jury there the it's not our it's basically our honor we're saying that this belongs to the estate because it's it's it's my individual account surely it's shirley's money they're saying that when all is a pate bypass the statute of wells and want to say this because this comes under section five of the your right if we're going to be signed the sundering the common law suit was without the benefit of the  evidence for at least sixty two years yet they chose not to use it i think that's something more she required of a huge institution like citibank and i think that we've got to start if we're  court decided we were we can weigh the evidence only where the evidence is overwhelming but i just don't like to see bad law made around and i think if you allow this car stand by itself even to produce going to speculate about that because we're not so i'm not about to take judicial notice of anything that i haven't been requested to take well i don't think they have to change anything around or they just have to follow her own prayer call if they follow savings and loan and that was apparently in illinois by statute one thousand and sixty five so it's not it's still not clear to me this deals with a slightly different act than the act we're dealing with here but it does say though it stands for the proposition that type  justice was a highly regarded job and i'm sure that he was and judge mcnamara in this case decided that even without the writing based on all of the other acts a bite of ballot cotton frost was set up in other words there was a statute that said if you use a writing you can you can set up a payable on death account he said that the writing was not enough because it was tight notation on the top of the pass book that if they have any signature on it and they found it later but based on the other fa circumstances the other evidence that came in they found that a valid totten trust was set up in the face of a statute that talked about a writing just like the statute that you asked me about judge us so to me based on my quick read this looks like my case you asked for an opportunity to write an op i would no problem it depends on what they did so yeah they want you have to ask hey i got it from my perspective based on my reading of the case i think as i stand adequate based on the surrounding facts and circumstances there was still a valid us process i have just a couple of other points i'd like to make responding if i might to all that what the administrators council said during his argument the fact that this think that's right now in terms of you know of that she didn't write the card and she if she would have filled out the card herself the post just signing it might have made some made some difference that's how the law says what the law says is is there sufficient evidence that she had the intent to create this particular totten trust and that is the question those present of weather based on the facts and circumstances the fact that she signed the card the fact she came into the bank that day with no other apparent purpose and with no other possible purpose anybody can explain that she signed it with her nephew's name at the epstein that there's absolutely no evidence that her nephew drove her there or anything else this is you know we're just grasping at straws when we talk about those kinds of things it seems to me the bottom line is she walked into the bank she asked to change her signature card she signed her name there's no other reason than the finally what it did in terms of seeing bad law made how about the intent of all those people that have signed these cards thinking that that's what was going to happen with their money these are people who are deciding what they are going to do with their assets and now if we were to change that if we were to change the law to say that that's not sufficient i'm more concerned about what happens to all of those fine but that i don't think there's any problem with in terms of which card she heard there's certainly no evidence that this particular card is different and in fact when the eight can testify that they stuck her twenty some years in banking including set at citi bank since