2023 WI App 60

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2022AP2036

Complete Title of Case: 

IN RE THE ESTATE OF CLARENCE E. KLAWITTER:

CARLA HENKE,

 APPELLANT,

 V.

THE ESTATE OF CLARENCE E. KLAWITTER,

 RESPONDENT.

Opinion Filed: October 12, 2023

Submitted on Briefs: June 7, 2023

JUDGES: Kloppenburg, P.J., Blanchard, and Graham, JJ.

Appellant

ATTORNEYS: On behalf of the appellant, the cause was submitted on the briefs of 

Andrew J. Adams and Benoit M. Letendre of West & Dunn LLC, 

Baraboo. 

Respondent

ATTORNEYS: On behalf of the respondent, the cause was submitted on the brief of 

John R. Miller of Miller & Miller, LLC, Portage. 
2023 WI App 60

COURT OF APPEALS

DECISION

DATED AND FILED

October 12, 2023

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 and 

RULE 809.62. 

Appeal No. 2022AP2036 Cir. Ct. No. 2022IN1

STATE OF WISCONSIN IN COURT OF APPEALS

IN RE THE ESTATE OF CLARENCE E. KLAWITTER:

CARLA HENKE,

 APPELLANT,

 V.

THE ESTATE OF CLARENCE E. KLAWITTER,

 RESPONDENT.

APPEAL from an order of the circuit court for Marquette County: 

CHAD A. HENDEE, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Graham, JJ.

¶1 GRAHAM, J. Carla Henke appeals a circuit court order that was 

entered following an evidentiary hearing in the probate court. In its order, the court 

granted declaratory judgment to the Estate of Clarence E. Klawitter, determining 
No. 2022AP2036

2

that the Estate is the sole owner of funds in two accounts that had been jointly held 

by Carla and her father, Clarence Klawitter.1 In granting judgment to the Estate, the 

court acknowledged the presumption raised by WIS. STAT. § 705.04(1) (2021-22)2

that “[s]ums remaining on deposit at the death of a party to a joint account belong 

to the surviving party,” and the court determined that the Estate rebutted that 

presumption by presenting “clear and convincing evidence” that Clarence had “a 

different intention at the time the account[s] [were] created.” See § 705.04(1).

¶2 On appeal, Carla argues that the circuit court erroneously admitted 

and relied on inadmissible evidence, and that the admissible evidence was 

insufficient to rebut the presumption raised by WIS. STAT. § 705.04(1). We disagree 

and affirm the circuit court’s order.

BACKGROUND

¶3 Clarence died intestate in December 2021. He was survived by his 

four daughters, Carla, Jennifer Shier, Sara Wilson, and Brenda Klawitter, and by his 

sister-in-law, Joan McReath. The survivors consented to informal administration of 

the estate, and Joan was appointed as its personal representative.

¶4 During probate, the Estate contested Carla’s ownership of funds in 

two joint accounts that were held in Clarence’s and Carla’s names and totaled 

approximately $82,000. The Estate sought a declaration that it is the sole owner of 

these funds. The Estate’s position was that, although Clarence added Carla’s name 

to the accounts as a joint owner in 2011, he had not done so with the intention of 

 

1

 We will refer to Carla, Clarence, and other members of their family by their first names 

to avoid confusion because many of them share last names.

2

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.
No. 2022AP2036

3

creating joint accounts with joint ownership or survivorship rights. According to 

the Estate, the intention had been to create accounts of convenience, Clarence added 

Carla to the accounts so that she could withdraw funds at his direction and for his 

benefit, and he did not intend Carla to be the sole beneficiary of the accounts upon 

his death.

¶5 The dispute proceeded to a hearing. During that hearing, the parties 

appeared to agree that, based on the signature cards that Clarence and Carla had 

signed in 2011 to add Carla’s name to the accounts, they had presumptively created 

joint accounts with survivorship rights. The parties also agreed that the sums 

remaining in the accounts after Clarence’s death presumptively belonged to Carla 

pursuant to WIS. STAT. § 705.04(1), and that the Estate had the burden to overcome 

that presumption by presenting clear and convincing evidence that the intention was 

not to create joint accounts with survivorship rights in 2011, when Carla was added 

to the accounts.

¶6 However, the parties did not agree on the evidence that the Estate 

could introduce to satisfy its burden of proof. At the outset of the hearing, Carla 

argued that the Estate could not overcome the presumption in WIS. STAT.

§ 705.04(1) unless it presented evidence of Clarence’s intention that was 

contemporaneous to the creation of the joint accounts in 2011. She argued that the 

Estate could not rely on evidence of Clarence’s subsequent statements and conduct 

because such evidence was irrelevant or legally insufficient to prove Clarence’s 

intention at the time the accounts were created. Relatedly, Carla argued that any 

after-the-fact statements Clarence made concerning his intention for the accounts 

were not admissible under the hearsay exception for statements of the declarant’s 

“then existing state of mind.” See WIS. STAT. § 908.03(3).
No. 2022AP2036

4

¶7 The circuit court overruled Carla’s pre-hearing objection, concluding 

that Clarence’s statements about his intentions were relevant and generally 

admissible under the hearsay exception in WIS. STAT. § 908.03(3), even if they were 

made after the joint accounts were created. However, the court left open the 

possibility that Carla could object to specific testimony as the hearing proceeded.

¶8 The following summary of facts is derived from the testimony and 

exhibits presented at the trial and is consistent with the circuit court’s findings.

¶9 Clarence was born in 1936 and attended school through the eighth 

grade. He was a lifelong farmer and a longtime employee of the county. Clarence 

and his wife, Judy Klawitter, were married for many years and had five children—

the four surviving daughters and a son. Judy managed their finances, and Clarence 

was not confident in his own ability to handle financial matters.

¶10 After Judy passed away in 1989, Clarence lived on his farm with his 

son, Brian Klawitter, who assisted him with the farm and with financial matters. 

Clarence also maintained a close relationship with Judy’s sister, Joan, and they 

regularly conversed throughout the remainder of Clarence’s life.

¶11 Brian passed away in 2010. Thereafter, Clarence continued to live on 

the farm with the assistance of his daughters. Carla and her husband, David Henke, 

lived nearby and helped Clarence more than his other daughters. Even so, Clarence 

was close with all of his daughters; according to Joan, Clarence never said “a bad 

thing about any of his children.”

¶12 After Brian’s death, Joan was “really concerned” about Clarence’s 

ability to manage his finances on his own. Joan knew that Judy and then Brian had 

handled Clarence’s finances during their lifetimes, and she “knew that [Clarence] 
No. 2022AP2036

5

was not good with finances.” During one conversation in 2011, Joan asked Clarence 

“how he was getting along,” and he responded that the bank “had to help [him] at 

first after Judy passed away.”3 Joan told Clarence that, “with Brian gone,” she 

thought that Clarence should ask “one of the girls ... to go with [him to the bank] 

and have their name put on the checking account, the book, or at least on [his] 

account.” Joan had done the same thing with her mother after she became disabled,

and Joan wanted Clarence “to get somebody to help him if he needed it.”

¶13 On April 6, 2011, Clarence called Carla and asked her to go to the 

bank with him so that he could put her name on two accounts. The first was a singleparty checking account that Clarence opened in 2006. The second was a singleparty savings account, which Clarence opened several days earlier on April 1, 2011.

¶14 At the bank that day, Clarence and Carla both signed a replacement 

signature card for each account, and the two cards were introduced as exhibits at 

trial. The signature cards identify Clarence as “Owner #1” and Carla as 

“Owner #2.” Each card had several checkboxes to indicate whether the account 

would be designated as a “Joint Account,” an “Authorized Signer (Agent) 

Designation,” or another designation. The description next to the joint account 

designation provided: “This Account is jointly owned by the parties named hereon. 

Upon the death of any of them, ownership passes to the survivor(s).” (Emphasis 

omitted.) By contrast, the description next to the authorized signer designation 

provided: “Transactions regarding this account may be made by the agent(s) named 

below. No present or future ownership or right of survivorship is conferred by this 

designation.” (Emphasis omitted.) On each of the signature cards, someone had 

 

3

 Carla specifically objected to this statement as hearsay, and the court overruled the 

objection.
No. 2022AP2036

6

checked the box designating the account as a joint account, and the box next to the 

authorized signer designation was left unchecked.

¶15 The bank employee who assisted Clarence and Carla was a witness at 

the trial. She testified that she typically explains the account designations and the 

consequences of those designations to customers, but that she did not specifically 

remember her conversation with Clarence and Carla. Carla testified that the bank 

employee explained the different account designations before she and Clarence 

signed the cards.

¶16 Carla further testified that Clarence did not tell her why he was adding 

her name to the accounts, and that he never told her that he intended to make her a 

beneficiary. According to Carla, she understood that she was designated as an 

owner on the accounts so that “if my dad wanted me to write a check, I could write 

a check. He didn’t explain anything or say anything otherwise.”

¶17 The two accounts remained open for the next ten years, until 

Clarence’s death in 2021. During that time, Carla took no action and made no use 

of the accounts. She did not make any deposits or withdrawals, nor did she pay 

attention to the account statements. The statements for both accounts were sent to 

Clarence alone, and Clarence never instructed Carla to do anything with the 

accounts. Carla testified that she did not think that she had the authority to use the 

funds in the accounts for her own personal purposes, but rather to assist her father 

if he needed assistance.

¶18 According to Jennifer’s trial testimony, she saw one of Clarence’s 

account statements and noticed Carla’s name on the statement. This occurred after 

Brian passed away, probably around 2012 or 2013. Jennifer and Clarence had a 

brief conversation, in which Jennifer asked Clarence why Carla’s name was on the 
No. 2022AP2036

7

statement. According to Jennifer, Clarence responded: “[O]h, that’s nothing. I just 

added her as power of attorney to my account, in case something happens to me, 

and I am not going to be able to write my own checks out.” Jennifer asked whether 

that meant that Carla had “access to [Clarence’s] money,” and Clarence said: “[N]o, 

no, no, nothing like that.... [J]ust you know, for protection, in case I end up in the 

hospital or something like that and I can’t write my own checks.”4

¶19 In 2013, Clarence’s daughters encouraged him to develop an estate 

plan and, at their urging, Clarence, Carla, and Brenda attended a meeting at the 

office of an estate planning attorney in February 2013. According to Brenda’s trial 

testimony, Clarence “didn’t want to be there” and “felt forced.” Brenda testified 

that Clarence told the attorney that he wanted Carla to be “Number 1 for decisionmaking, if he had to go to the hospital or something,” and that upon his death, he 

wanted the farm machinery to go to David, his four daughters to run the farm as a 

partnership, and the remaining property to be divided equally between his four 

daughters. The joint accounts were not discussed at this meeting.

¶20 Following the meeting, the attorney sent a proposed estate plan to 

Clarence. Its provisions were consistent with the above-described intentions that 

Clarence had expressed to the attorney during the meeting. The proposed plan did 

not mention the joint accounts that Clarence held with Carla.

¶21 Clarence never followed up with the attorney and never finalized the 

proposed plan or any other plan. Clarence told Carla that “it was not worth it, [that 

it was] too expensive.” When Joan asked Clarence why he would not finalize an 

estate plan, Clarence said that he “was not going to do it,” that he “was not going to 

 

4

 Carla specifically objected to this testimony as hearsay, and the circuit court overruled 

the objection.
No. 2022AP2036

8

go back and give [the attorney] any money,” and that he did not “need to fill ... out” 

the paperwork from the attorney because “if I don’t have a will, it is going to be 

divided equally anyway.”5

¶22 The circuit court rendered its ruling at the close of the hearing. The 

court found that, based on the language on the replacement signature cards, Carla 

and Clarence had created joint accounts that presumptively entailed survivorship 

rights under WIS. STAT. § 705.04(1). However, the court also determined that the 

Estate had rebutted that presumption. It found that, despite the joint account 

designations, Clarence intended to create accounts of convenience, that he did not 

intend to make Carla a joint owner on the accounts during his lifetime, and that he 

did not intend for her alone to inherit the remaining sums upon his death.

¶23 The circuit court entered an order declaring the funds in the accounts 

to be assets of the Estate, which would be divided evenly among Clarence’s 

daughters based on the laws of intestate succession. Carla appeals.

DISCUSSION

¶24 The sole issue presented in this appeal is the ownership of the accounts 

that were held in Clarence’s and Carla’s names. According to Carla, the admissible 

evidence at the hearing was insufficient to clearly and convincingly prove that the 

accounts belonged to the Estate. We address Carla’s challenge in two parts. We 

first address the law governing joint accounts, and then address Carla’s challenges 

to the admissibility and sufficiency of the evidence.

 

5

 Carla specifically objected to the questioning of Carla and Joan about Clarence’s reasons 

for not following through with the estate planning attorney, and the circuit court overruled her 

objections.
No. 2022AP2036

9

I. Law Governing Joint Accounts

¶25 A “joint account” is an account that is “payable on request to one or 

more of 2 or more parties whether or not mention is made of any right of 

survivorship.” WIS. STAT. § 705.01(4). Joint accounts are jointly owned by the 

parties to the account during their lifetimes, “without regard to the proportion of 

their respective contributions,” and with each having a right to withdraw “any sum” 

without being “subject to inquiry by any person, including any other party to the 

account.” WIS. STAT. § 705.03(1). Upon the death of one of the parties to a joint 

account, any “[s]ums remaining on deposit” pass to “the surviving party,” 

independently of probate. WIS. STAT. § 705.04(1). This last concept is referred to 

as a “right of survivorship” or “survivorship rights.”

¶26 As discussed, the Estate does not dispute that, under Wisconsin law, 

the language on the signature cards that Clarence and Carla signed was effective to 

create joint accounts with survivorship rights. See WIS. STAT. § 705.02(1)(a).

6

 

When parties to an account execute a signature card containing the language in 

§ 705.02(1)(a), the law presumes that the language on the signature card governs 

and expresses the intention to create an account with joint ownership and 

survivorship rights. See WIS. STAT. §§ 705.03(1), 705.04(1).

 

6

 Specifically, WIS. STAT. § 705.02(1)(a), provides that:

(1) Provisions in substantially the following form 

contained in a signature card ... evidencing an account shall be 

effective to create the [joint account] when conspicuously printed 

or typewritten immediately above or adjacent to the place for the 

signatures of the parties to the account:

(a) Joint account: “THIS ACCOUNT/CERTIFICATE 

OF DEPOSIT IS JOINTLY OWNED BY THE PARTIES 

NAMED HEREON. UPON THE DEATH OF ANY OF THEM, 

OWNERSHIP PASSES TO THE SURVIVOR(S).”
No. 2022AP2036

10

¶27 That said, accounts that are titled as “joint accounts” “can serve many 

purposes” and “take several forms.” See Russ v. Russ, 2007 WI 83, ¶61, 302 Wis. 

2d 264, 734 N.W.2d 874 (Abrahamson, C.J., concurring) (citing WIS. STAT.

§§ 705.01(4), 705.02(1)). The parties to the account may have intended to create 

precisely the type of joint account that the statutes presume—an account in which 

both parties have full access to and joint ownership of all funds in the account, and 

also have rights of survivorship. See id. In other instances, the parties may have 

intended the joint account to be a testamentary device with rights of survivorship, 

but without joint ownership during the parties’ lifetimes. See id.7

¶28 In still other instances, the parties may have intended to create what 

is referred to as an “account[] of convenience.” See id.; see also First Nat’l Bank 

of Janesville v. Ecke, 16 Wis. 2d 480, 488, 114 N.W.2d 803 (1962); Plainse v. 

Engle, 262 Wis. 506, 519, 56 N.W.2d 89 (1952), modified on rehearing by 262 Wis. 

506, 57 N.W.2d 586 (1953). An account of convenience is a joint account that was 

created for the depositor’s convenience. Russ, 302 Wis. 2d 264, ¶61 (Abrahamson, 

C.J., concurring). During the depositor’s lifetime, the funds belong solely to the 

depositor, and the other party can access the funds solely for the depositor’s benefit, 

such as to pay the depositor’s bills. Id.; see also First Nat’l Bank, 16 Wis. 2d at 

488 (describing the nature of a joint bank account for convenience as one in which 

an agency relationship is created); Michaels v. Kruke, 26 Wis. 2d 382, 392-93, 132 

N.W.2d 557 (1965) (describing the nature of such an account as one whereby a trust 

 

7

 See also Zander v. Holly, 1 Wis. 2d 300, 313-14, 84 N.W.2d 87 (1957) (concluding that 

a joint account was created that reserved to the depositor, an aunt, the complete right of withdrawal 

of the funds in the joint account created with her niece, but that the niece should have whatever 

remained in the account by survivorship); Michaels v. Kruke, 26 Wis. 2d 382, 398, 132 N.W.2d 

557 (1965) (“The reservation by [one party] of full control over the account during her lifetime, 

thus excluding [the other party] from any right of withdrawal, did not invalidate the survivorship 

feature of the joint account so as to make it an ineffective testamentary disposition.”).
No. 2022AP2036

11

is imposed upon the other party). It appears that Wisconsin cases presume that “no 

rights of survivorship are intended” when the account is one of convenience. See 

First Nat’l Bank, 16 Wis. 2d at 488; Plainse, 262 Wis. at 519; Michaels, 26 Wis. 

2d at 392-93.

¶29 In sum, although the language on the signature cards signed by 

Clarence and Carla gives rise to the presumptions that the intention was to create an 

account with both joint ownership and survivorship rights, both of those 

presumptions are rebuttable. It is the intention that motivated the creation of the 

account that ultimately governs. First Nat’l Bank, 16 Wis. 2d at 487 (“The 

underlying principle is to determine the intent of the depositor in establishing the 

account.”). WISCONSIN STAT. § 705.03(1) provides that the presumption of joint 

ownership during the parties’ lifetimes can be rebutted by “clear and convincing 

evidence of a different intention,” and WIS. STAT. § 705.04(1) provides that the 

presumption of survivorship can be rebutted by “clear and convincing evidence of 

a different intention at the time the account is created.”

¶30 Here, the sole issue is whether Clarence intended that Carla would 

have a right of survivorship.8 The parties agree that the inquiry turns on Clarence’s 

intention at the time he added Carla’s name to what had previously been single-

 

8

 Carla and the Estate appear to agree that it is Clarence’s intention, not Carla’s intention, 

that matters for purpose of this appeal. The statutory language speaks of “a different intention at 

the time the account is created,” WIS. STAT. § 705.04(1), and it would be reasonable to conclude 

that this language contemplates the mutual intentions of all parties to the joint account at the time 

of its creation as a joint account. Here, however, the parties focus exclusively on Clarence’s 

intention, and Wisconsin cases that predate the enactment of § 705.04(1) have also focused on the 

intention of the deceased depositor. See First Nat’l Bank of Janesville v. Ecke, 16 Wis. 2d 480, 

488, 114 N.W.2d 803 (1962); Johnson v. Mielke, 49 Wis. 2d 60, 77, 181 N.W.2d 503 (1970); Gray 

v. Schultz, 27 Wis. 2d 204, 209-10, 133 N.W.2d 816 (1965). Such a focus appears to be appropriate 

in a case like this, in which it was Clarence’s decision to add Carla to the account, Clarence did not 

tell Carla why he added her to the account, and there was no evidence that Carla had any intention 

for the accounts that was independent of Clarence’s intention.
No. 2022AP2036

12

party checking and savings accounts. See Reichel v. Jung, 2000 WI App 151, ¶28, 

237 Wis. 2d 853, 616 N.W.2d 118; Johnson v. Mielke, 49 Wis. 2d 60, 77, 181 

N.W.2d 503 (1970); First Nat’l Bank, 16 Wis. 2d at 487-88. This is because a 

party’s later contrary intentions about what the party would like to happen to the 

account after the party’s death cannot alter the party’s initial intention in favor of 

survivorship. See, e.g., WIS. STAT. § 705.04(3); Reichel, 237 Wis. 2d 853, ¶¶28, 

30; Gray v. Schultz, 27 Wis. 2d 204, 209, 133 N.W.2d 816 (1965). This is true even 

if those later contrary intentions are unequivocally expressed in a will or other 

written instrument.

9

 Therefore, in this case, the Estate needed to prove that on April 

6, 2011, when Clarence added Carla to the accounts, he intended to create an 

account of convenience and did not intend for Carla to have survivorship rights to 

the money remaining in the accounts after his death.

¶31 Although the parties appear to agree on the legal standard the Estate 

must satisfy to rebut the presumption raised by WIS. STAT. § 705.04(1), they 

disagree about the type of evidence that the Estate can use to satisfy that standard. 

Most prominently, Carla contends that it was improper for the circuit court to 

consider evidence “from times other than the time the account [was] created” in 

making the determination that Clarence intended to create accounts of convenience 

with no right of survivorship. She argues that evidence must predate or be 

contemporaneous to the creation of the joint account to be relevant to prove 

 

9

 See, e.g., WIS. STAT. § 705.04(3) (“a right of survivorship arising from the express terms 

of the account ... cannot be changed by will”); see also Reichel v. Jung, 2000 WI App 151, ¶¶28, 

30, 237 Wis. 2d 853, 616 N.W.2d 118 (survivorship terms in a joint annuity agreement controlled 

over a later executed marital property agreement that classified the annuity as a single property to 

be included in the estate of the decedent); Gray, 27 Wis. 2d at 209 (“efforts to alter the nature of 

the account after it was in existence are not controlling; the governing intention which the court 

must determine is that which prevailed” when the account was created).
No. 2022AP2036

13

Clarence’s intention at the time an account was created and admissible for that

purpose.

¶32 Carla’s argument is nuanced, and it requires some unpacking. 

According to Carla, if Clarence made statements after the joint accounts were 

created that expressly asserted the intention that he had at the time the accounts were 

created, such statements might be relevant, but they would also be inadmissible 

hearsay. Conversely, Carla argues, if Clarence made statements after the joint 

accounts were created that expressed his intention at the time he made the 

statements, such statements would not be probative of the intention he had at the 

time the accounts were created and would therefore be irrelevant. This latter 

argument—that post-creation statements expressing a party’s post-creation 

intention are irrelevant—is based on the principle that a later-executed will or 

marital property agreement cannot alter the survivorship feature of a joint account. 

Carla reasons that, if a later-executed written instrument cannot alter that feature, 

then any post-creation evidence of a party’s post-creation intention regarding the 

accounts is also irrelevant and insufficient.

¶33 As for Carla’s hearsay-based arguments about post-creation 

statements that assert a speaker’s intention at the time a joint account was created, 

we address these arguments in the following section of this opinion. Turning to 

Carla’s relevancy-based argument about post-creation statements that express the 

speaker’s post-creation intention, we disagree for reasons we now explain.

¶34 As we have stated, the inquiry under WIS. STAT. § 705.04(1) turns on 

the intention for the joint account at the time it was created. However, it does not 

follow that evidence postdating the creation of the account which expresses the 

party’s post-creation intention, is only probative of the party’s post-creation 
No. 2022AP2036

14

intention, and is therefore irrelevant to the inquiry. As one commentator has 

explained, the law of evidence “embraces the common sense assumption that mental 

states,” including intentions, can “persist over time.” 7 Daniel D. Blinka, 

WISCONSIN PRACTICE SERIES: WISCONSIN EVIDENCE § 801.306 at 772-73 (4th ed. 

2017) (citing David H. Kaye et al., MCCORMICK ON EVIDENCE § 274 (7th ed.

2014)); Blinka, supra, § 803.301 at 871. Expressions of a person’s then-existing 

state of mind are, “of course, probative of the [person’s] mental state at the time.” 

Id. However, the person’s expression “may also be used to show that the same 

mental state existed prior to, or after,” the utterance of that expression. Id. This 

concept is referred to as the doctrine of “continuity in time of states of mind.” Id.

¶35 Applying this doctrine in the context of WIS. STAT. § 705.04(1), we 

conclude that, because a party’s intention for a joint account may persist after its 

creation and may manifest in the party’s post-creation statements and conduct, postcreation evidence of such manifestations may be relevant. Depending on the facts 

of a given case and the strength of the available evidence, a fact finder may be able 

to infer from a party’s post-creation expressions of their post-creation intention that 

the party held the same intention at the time the account was created. Indeed, 

Wisconsin cases that were decided before the enactment of § 705.04(1) routinely 

considered evidence that postdated the creation of a joint account to be probative of 

the parties’ intentions at the time the account was created.10

 

10

 WISCONSIN STAT. § 705.04(1) was enacted by 1973 Wis. Act 291. For cases that were 

decided prior to its enactment, see, e.g., Johnson, 49 Wis. 2d at 77 (“Evidence subsequent to the 

establishment of the account may be relevant and probative of the intent at the time the account 

was created.”); Kohn v. Kynaston, 43 Wis. 2d 520, 524, 168 N.W.2d 812 (1969) (“Evidence 

subsequent to the establishment of the account may be relevant and probative of the intent at the 

time of the creation of the [joint] tenancy and of its nature.”). In Johnson, 49 Wis. 2d at 77, for 

example, the court considered the decedent’s later statement that she added the survivor to assist 
No. 2022AP2036

15

¶36 To the extent Carla is arguing that this principle no longer applies after 

the enactment of WIS. STAT. § 705.04(1), we disagree. Carla does not argue that the 

statute abrogates the common law. See Fuchsgruber v. Custom Accessories, Inc., 

2001 WI 81, ¶25, 244 Wis. 2d 758, 628 N.W.2d 833 (“A statute does not change 

the common law unless the legislative purpose to do so is clearly expressed in the 

language of the statute.”). And there is no language in § 705.04(1) that expressly 

requires that evidence used to prove the intention at the time the account was created 

must predate or be contemporaneous to the creation of the account. The phrase “at 

the time the account is created” modifies the phrase “a different intention,” and not 

the phrase “clear and convincing evidence.” See § 705.04(1). Had the legislature 

intended to abrogate the common law and impose such a requirement, it would have 

provided that the presumption applies “unless there is clear and convincing evidence 

from the time the account was created of a different intention at that time.”

¶37 To be sure, contemporaneous evidence such as a party’s statements to 

bank employees or others of the intention that motivated the creation of a joint 

account may have greater probative value than post-creation evidence from months 

or years after the fact. Additionally, evidence that a party’s intentions changed after 

creating a joint account may undermine any inference that the party’s post-creation 

expressions of post-creation intention are probative of the party’s intention at the 

time the account was created. However, these issues generally involve the weight 

that should be given to the evidence, which is a question that is generally reserved 

for the fact finder. Wisconsin law does not support the categorical exclusion of 

 

her with paying her bills. In First Nat’l Bank, 16 Wis. 2d at 483-85, the court considered, among 

other things, statements the decedent made after the creation of the joint account that she wanted 

the survivor, and not her other relatives, to keep the remaining sums in the account if anything 

happened to her. And in Gray, 27 Wis. 2d at 209, and Pfeifer v. Pfeifer, 1 Wis. 2d 609, 610-13, 

85 N.W.2d 370 (1957), our supreme court also considered the parties’ subsequent use of the 

account.
No. 2022AP2036

16

evidence postdating the creation of a joint account on the ground that such evidence 

lacks any tendency to prove a party’s intention at the time the account was created.

II. The Circuit Court’s Decision

¶38 Carla challenges the circuit court’s determination that the Estate 

presented clear and convincing evidence that, at the time Clarence added Carla to 

the accounts, he intended to create accounts of convenience and did not intend for 

Carla to have a right of survivorship. Carla argues that the court relied on 

inadmissible hearsay to make that determination, and that, with or without such 

evidence, the evidence was insufficient to rebut the presumption in WIS. STAT.

§ 705.04(1). We first address Carla’s arguments about hearsay and then, after 

determining which evidence was properly admitted, we assess Carla’s argument that 

the admissible evidence was insufficient to support the court’s determination.

A. Hearsay

¶39 Hearsay is “a statement, other than one made by the declarant while 

testifying at the trial or hearing,” that is “offered in evidence to prove the truth of 

the matter asserted.” See WIS. STAT. § 908.01(3). In this context, a “statement” is 

defined as “an oral or written assertion.” See § 908.01(1). An “assertion,” in turn, 

is “an expression of fact, opinion, or condition explicit or implicit in the words used 

by the speaker, as long as the speaker intended to express that fact, opinion, or 

condition.” State v. Kutz, 2003 WI App 205, ¶46, 267 Wis. 2d 531, 671 N.W.2d 

600. WISCONSIN STAT. § 908.02 bars the admission of hearsay except as otherwise 

provided in the rules of evidence. See WIS. STAT. chs. 901-911 (comprising the 

Wisconsin Rules of Evidence). If an out-of-court statement is offered to prove the 

truth of a matter the declarant intended to assert, it is admissible only if it falls within 

a recognized hearsay exception.
No. 2022AP2036

17

¶40 One such exception is found in WIS. STAT. § 908.03(3). Under that 

exception, statements of the declarant’s then-existing mental, emotional, or physical 

condition are admissible, regardless of whether the declarant is or is not available 

to testify. According to its express terms, § 908.03(3) allows the admission of outof-court statements of “the declarant’s then existing state of mind, emotion, 

sensation, or physical condition, such as intent, plan, motive, design, mental feeling, 

pain, and bodily health.” That is, the exception covers a declarant’s statements 

which assert the declarant’s state of mind (including the declarant’s intention) at the 

time the statement was made, if the statement was offered to prove that that was the 

declarant’s state of mind at the time. Kutz, 267 Wis. 2d 531, ¶57. It does not cover 

statements which assert the declarant’s past state of mind.

¶41 WISCONSIN STAT. § 908.03(3) also unequivocally provides that 

certain assertions of “memory or belief” are not covered by this hearsay exception. 

Specifically, § 908.03(3) excludes the admission of “statement[s] of memory or 

belief to prove the fact remembered or believed.”11 Thus, statements of a declarant’s 

present belief or memory are inadmissible to prove the truth of events that have 

occurred in the past. By way of example, a decedent’s out-of-court statement that 

her husband had threatened her might be admissible to prove her then-existing state 

of mind—that she was afraid of her husband. Kutz, 267 Wis. 2d 531, ¶¶58-60 (citing 

State v. Jackson, 187 Wis. 2d 431, 436, 523 N.W.2d 126 (Ct. App. 1994)). 

However, the decedent’s out-of-court statement would not be admissible to prove 

 

11

 There is one exception to this rule (effectively, an exception to the exception to the 

hearsay exception), but there is no argument that it applies here. Under WIS. STAT. § 908.03(3), an 

out-of-court statement of “memory or belief” that “relates to the execution, revocation, 

identification, or terms of [the] declarant’s will” is admissible “to prove the fact remembered or 

believed.”
No. 2022AP2036

18

that the decedent’s husband had in fact threatened her. Kutz, 267 Wis. 2d 531, ¶¶60, 

62.

¶42 The decision to admit or exclude evidence is generally a matter within 

the circuit court’s discretion. See State v. Joyner, 2002 WI App 250, ¶16, 258 Wis. 

2d 249, 653 N.W.2d 290. We will not reverse the court’s evidentiary ruling “if the 

court properly exercises its discretion by applying the correct legal standard to the 

relevant facts of record.” Kutz, 267 Wis. 2d 531, ¶33. If the court admitted evidence 

based on an erroneous view of the law, it has exceeded its discretion. Id. However, 

we may affirm the court’s ruling if, based on our review of the record, we conclude 

that the statement is admissible on an alternative basis. Id.

¶43 During the hearing in this case, the circuit court admitted several of 

Clarence’s out-of-court statements, citing the hearsay exception in WIS. STAT.

§ 908.03(3). These statements, all made by Clarence, fall into three categories: 

(1) his statement to Joan about the bank assisting him after Judy passed away; (2) his 

statements to Joan and Carla in 2013, in which he explained why he did not follow 

through with the estate planning attorney; and (3) his statements to Jennifer in 2012 

or 2013, in which he responded to Jennifer’s questions about seeing Carla’s name 

on an account statement. Carla argues that all three categories of statements 

constitute inadmissible hearsay; and in response, the Estate argues (among other 

things) that Clarence’s statements are not hearsay or they are admissible under the 

hearsay exception in § 908.03(3).12 We address each category of statements in turn.

 

12

 We summarily address and reject two arguments that the Estate might be making in 

regards to the statements Carla objected to as hearsay.
No. 2022AP2036

19

1.

¶44 Carla challenges the admission of Clarence’s statement to Joan that 

“the bank had to help [him] out at first after Judy passed away.” Carla argues that 

this statement is hearsay, and that it does not fall into the exception set forth in WIS.

STAT. § 908.03(3).

¶45 We agree. Clarence’s out-of-court statement was not an expression 

of Clarence’s then-existing state of mind. It was instead an assertion about the 

occurrence of a past event—that is, an assertion that Clarence remembered 

something that happened in the past. The Estate does not address the admissibility 

of this statement in its briefing. It does not argue that it offered the statement for 

any purpose other than to prove the truth of the fact Clarence remembered. See WIS.

STAT. § 908.03(3). Nor does it argue that it was admissible under a different 

exception. Under these circumstances, we deem this point conceded. See United 

 

First, the Estate appears to argue that Clarence’s statements are admissible because they 

are highly probative to the inquiry under WIS. STAT. § 705.04(1). It is unclear if the Estate is 

arguing that § 705.04(1) is in itself a hearsay exception, or if it is arguing that offering out-of-court 

statements to prove the declarant’s intention at the time the account was created constitutes a nonhearsay purpose. Either way, we disagree. Subsection 705.04(1) is not a rule of evidence. If a 

proponent is offering a declarant’s assertion of intention to prove that that was in fact the declarant’s 

intention, then the statement is hearsay. No matter how relevant such a statement may be to the 

inquiry under § 705.04(1), it must still fall within a hearsay exception to be admissible.

Second, the Estate appears to be arguing that, regardless of the rules of evidence, any 

statement by a deceased declarant is now admissible because the “dead man’s statute,” which was 

formerly found in WIS. STAT. §§ 885.16 and 885.17 (2015-16), has been repealed. See S. CT.

ORDER 16-01 (Feb. 21, 2017). We disagree. The dead man’s statute was a rule of witness 

competency that “disqualifie[d] a witness to a transaction or communication with a decedent from 

testifying about that transaction or communication in his or her favor” or in the favor of the party 

presenting the witness’s testimony. Bell v. Neugart, 2002 WI App 180, ¶17, 256 Wis. 2d 969, 650 

N.W.2d 52. However, the repeal of the dead man’s statute did not repeal the rules of evidence as 

applied to statements by deceased declarants. Although the repeal of the dead man’s statute means 

that interested witnesses are no longer considered legally “incompetent” to testify about 

transactions or communications with a decedent, it does not change the fact that such testimony 

will in some circumstances constitute hearsay and be subject to the rules of evidence governing 

hearsay.
No. 2022AP2036

20

Coop. v. Frontier FS Coop., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 

578 (failure to respond to an argument may be taken as a concession).

¶46 However, “[n]o judgment shall be reversed or set aside ... [unless] it 

shall appear that the error complained of has affected the substantial rights of the 

[appealing] party ....” WIS. STAT. § 805.18(2); see also Nommensen v. American 

Continental Ins. Co., 2001 WI 112, ¶49, 246 Wis. 2d 132, 629 N.W.2d 301 (the 

party alleging error has the burden to show its substantial rights have been violated). 

An error affects the substantial rights of a party if there is a “reasonable possibility” 

that it “contributed to the outcome of the action or proceeding at issue.” Id., ¶52.

¶47 Here, we conclude that the erroneous admission of this statement did 

not affect Carla’s substantial rights for two reasons. First, although the circuit court 

found that Clarence was not well versed in banking, there was ample non-hearsay 

evidence on this point, and no evidence to the contrary. This non-hearsay evidence 

included Joan’s testimony about Clarence’s shortcomings in this area, and Joan’s 

opinion was informed by her decades-long relationship with Clarence and his 

family. Second, the truth of the matter asserted in this statement—that the bank had 

provided Clarence with assistance at one point in the past—had no direct probative 

value to the dispositive issue in the case, which was whether Clarence intended 

Carla to have a right of survivorship at the time he added her name to the accounts. 

We therefore conclude that the erroneous admission of this statement did not 

contribute to the outcome of the proceeding.

2.

¶48 Carla also challenges the admission of two statements that Clarence 

made in 2013, in which he explained why he did not follow through with the estate 

planning attorney to finalize the plan that the attorney had prepared. According to 
No. 2022AP2036

21

Carla, Clarence said that “it was not worth it” and was “too expensive.” And 

according to Joan, Clarence said something to the effect of “I don’t need to fill it 

out,” and “if I don’t have a will, it is going to be divided equally anyway.”

¶49 Carla asserts that these statements are hearsay and are inadmissible 

under WIS. STAT. § 908.03(3) because they assert “the cause of a past event” and 

have “nothing to do with [Clarence’s] then-existing state of mind.” We disagree. 

Clarence’s statements were admissible, either because they are not hearsay and were 

admitted as circumstantial evidence of Clarence’s state of mind in 2013, or, if 

hearsay, because they were admissible under § 908.03(3) as expressions of his thenexisting state of mind.

¶50 We begin by observing that Clarence’s statements expressly asserted 

certain facts—that he did not need to “fill out” an estate plan; that it was “too 

expensive” to do so; and that his assets would be divided evenly if he died intestate. 

However, the Estate does not appear to have offered these statements for the truth 

of those express assertions. See Caccitolo v. State, 69 Wis. 2d 102, 109, 230 

N.W.2d 139 (1975) (declarant’s statement that “everything was all right” was “not 

introduced for the purpose of proving that in fact ‘everything was all right.’”).

¶51 It instead appears that the Estate introduced Clarence’s statements to 

prove the truth of other relevant matters that Clarence either intended to assert, or 

that could be inferred from the statements. See Blinka, supra, § 801.302 at 766. 

(cautioning practitioners to distinguish between assertions that the declarant intends 

to communicate and the range of reasonable inferences that can be drawn from a 

statement). These other matters include Clarence’s 2013 belief that the laws of 

intestate succession would achieve the same result as the plan the attorney had 
No. 2022AP2036

22

proposed, and Clarence’s desire in 2013 that his assets would be split evenly among 

his daughters.

¶52 Whether these statements are hearsay depends on whether Clarence 

intended to assert these matters when he made these statements to Carla and to Joan. 

See Kutz, 267 Wis. 2d 531, ¶46. Yet, we need not resolve what Clarence intended 

to communicate because, either way, the statements are admissible. If Clarence did 

not intend to assert that, as of 2013, he wanted his assets to be split evenly among 

his daughters and he believed that the laws of intestate succession would achieve 

that result, then the statements are not hearsay, and they are admissible as 

circumstantial evidence of Clarence’s state of mind in 2013. Id. Alternatively, if 

Clarence did intend to assert these matters, the statements are hearsay, but they are 

admissible under the hearsay exception in WIS. STAT. § 908.03(3) because they 

assert Clarence’s then-existing intention and belief and were offered to prove his 

then-existing desire and belief. Id., ¶57.

¶53 Carla argues that, at best, Clarence’s statements establish his intention 

in 2013, and that what really matters to the inquiry under WIS. STAT. § 705.04(1) is 

what Clarence intended in 2011, “at the time the account [was] created.” To the 

extent that Carla is arguing that Clarence’s state of mind in 2013 is irrelevant and 

his statements should be excluded on that basis, we disagree for reasons discussed

at length above. Although the ultimate issue under § 705.04(1) is Clarence’s

intention in 2011, that does not mean that evidence of Clarence’s post-creation 

beliefs and desires has no conceivable bearing on that ultimate issue. Based on the 

doctrine of continuity in time of states of mind, “[a] statement of a ‘then existing’ 

state of mind” may “be used to show that the same mental state existed prior to, or 

after, the making of the statement.” Blinka, supra, §§ 801.306 at 772-73, 803.301 

at 871.
No. 2022AP2036

23

¶54 Here, Clarence’s beliefs and desires in 2013 had some tendency to 

prove what his intention had been in 2011 based on the following chain of 

inferences. If Clarence wanted his assets to be evenly divided among his daughters 

in 2013, then a fact finder could infer that he had the same view in 2011. And, if 

Clarence had the same view in 2011, then the fact finder could infer that it was less 

likely that, when he added Carla as joint owner to the accounts, he intended for her 

to become the sole owner of the funds in the accounts upon his death. To be sure, 

the probative weight of this chain of inferences might be greater if Clarence made 

these statements closer in time to the creation of the joint accounts. But that is a 

matter of the weight that the fact finder should give to the evidence. It does not 

mean that the evidence has no tendency to prove what Clarence’s intention was in 

2011 when he added Carla to the accounts.

3.

¶55 Finally, Carla challenges the admission of the two statements 

Clarence made to Jennifer in 2012 or 2013 regarding the joint accounts. According 

to Jennifer, she asked Clarence why Carla’s name appeared on the accounts and he 

responded: “[O]h, that’s nothing. I just added her as power of attorney to my 

account, in case something happens to me, and I am not going to be able to write 

my own checks out.” Jennifer then asked whether Carla “has access to [his] 

money,” and Clarence responded: “[N]o, no, no, nothing like that.... [J]ust, you 

know, for protection, in case I end up in the hospital or something like that and I 

can’t write my own checks.”

¶56 For reasons we now explain, we conclude that Clarence’s second 

statement to Jennifer was admissible to prove Clarence’s state of mind at the time 

the statement was made, either because it was not hearsay, or because, if hearsay, it 
No. 2022AP2036

24

was admissible under WIS. STAT. § 908.03(3). We further conclude that his first 

statement to Jennifer was inadmissible hearsay, but that its erroneous admission did 

not affect Carla’s substantial rights.

¶57 The second statement—that Carla did not have access to Clarence’s 

money and was authorized to write checks only if Clarence ended up in the 

hospital—is phrased as an express assertion of fact. This assertion of fact did not, 

however, conform to reality—the signature cards Clarence and Carla signed 

unequivocally provided otherwise, and we do not understand the Estate to have 

introduced this statement to prove the truth of its express assertion.

¶58 Instead, it appears that the Estate introduced the statement to prove 

Clarence’s then-existing beliefs about the nature of the joint accounts and Carla’s 

access to the sums in the accounts, and it was admissible for that purpose. If 

Clarence did not intend to assert those beliefs, his statement was not hearsay and 

was not objectionable on that basis. Alternatively, if Clarence did intend to assert 

those beliefs, the hearsay statement was admissible under WIS. STAT. § 908.03(3) 

as a statement of Clarence’s then-existing state of mind. Either way, the statement 

was admissible. And, based on reasoning discussed above, Clarence’s post-creation 

state of mind at the time of his 2012 or 2013 conversation with Jennifer had at least 

some tendency to prove his intention in 2011, when the joint accounts were created.

¶59 Turning to Clarence’s first statement to Jennifer—that he added Carla 

to the accounts as power of attorney in case something happened to him and he 

could not write his own checks—this statement contains express assertions of fact. 

One such assertion is about Carla’s legal status with regard to the account: that 

Clarence made Carla his power of attorney. However, that assertion was not 

actually correct, and we do not understand the Estate to have sought to admit 
No. 2022AP2036

25

Clarence’s statement for the truth of Carla’s status as power of attorney. Instead, 

we understand that the Estate sought to admit Clarence’s first statement to prove 

what Clarence’s intention had been when he added Carla to the accounts in 2011. 

Unlike his second statement to Jennifer, discussed above, we conclude that this first 

statement was offered to prove the truth of a matter Clarence intended to assert, and 

was inadmissible for that purpose.

¶60 Clarence’s first statement to Jennifer contains an assertion about his 

past intention—that the reason Clarence “added her” to the accounts was in case 

something happened to him and he was not able to write his own checks. Even if it 

does not expressly assert Clarence’s past intention, it is implicit in the words he 

used. Further, it is apparent from the context in which Clarence made the statement 

that that was what he intended to assert in response to Jennifer’s inquiry. See Kutz, 

267 Wis. 2d 531, ¶46 (“Sometimes it will be evident from the utterance itself that 

the speaker necessarily intended an implicit assertion.”). The Estate sought to admit 

this statement for the truth of Clarence’s assertion about his past intention, which 

renders the statement hearsay. And, although the statement expressly asserts 

Clarence’s state of mind, it was not admissible pursuant to WIS. STAT. § 908.03(3) 

because it was not a statement of Clarence’s then-existing state of mind. Unlike the 

second statement, Clarence’s first statement to Jennifer was a post-creation 

expression of his pre-creation intention: it was worded in the past tense and 

explained his past reasons for doing something in 2011, and it was not admissible 
No. 2022AP2036

26

for that purpose under § 908.03(3).13 When Carla objected to this testimony during 

the hearing, the circuit court should have sustained the objection.

¶61 However, we conclude that Carla has not shown that the erroneous 

admission of Clarence’s first statement to Jennifer affected Carla’s substantial 

rights. See WIS. STAT. § 805.18(2); Nommensen, 246 Wis. 2d 132, ¶49. As 

explained in greater detail in the following section, there was significant admissible 

non-hearsay evidence from which the circuit court could infer that, despite 

designating the accounts as joint accounts on the signature cards, Clarence’s

intention in 2011 was to create accounts of convenience without survivorship rights. 

Additionally, there was significant admissible non-hearsay evidence from which the 

court could reasonably infer that, after the fact, that was what Clarence believed he 

had done. The improperly admitted evidence was essentially cumulative of the 

admissible evidence, and there was no evidence to the contrary. We therefore 

conclude that there is no reasonable probability that the erroneous admission of 

Clarence’s first statement to Jennifer contributed to the outcome of the proceeding.

B. Sufficiency of the Evidence

¶62 We now address whether the admissible evidence presented at the 

hearing was sufficient to prove that the joint accounts belong to the Estate.

¶63 Neither Carla nor the Estate explicitly addresses the standard of 

review that applies to a circuit court’s determination under WIS. STAT. § 705.04(1). 

Both appear to assume that this case presents a question of fact subject to the clearly 

 

13

 Professor Blinka has stated that, in effect, the WIS. STAT. § 908.03(3) exception requires 

that the out-of-court statement “be worded in the present tense.” 7 Daniel D. Blinka, WISCONSIN 

PRACTICE SERIES: WISCONSIN EVIDENCE § 803.301 at 871 (4th ed. 2017) (contrasting the 

statement “I am feeling ill,” which is admissible under § 908.03(3) with the statement “I felt ill,” 

which is not admissible under § 908.03(3) because it describes how the declarant felt in the past).
No. 2022AP2036

27

erroneous standard of review. There is no case law following the enactment of 

§ 705.04 that explicitly addresses the applicable standard of review. Prior to its

enactment, our cases appeared to treat the ultimate determination of the nature of a 

joint account as an issue of law that was primarily informed by the parties’ 

intentions, which our cases treated as a question of fact subject to the clearly 

erroneous standard of review.14

¶64 We conclude that this same standard of review applies following the 

enactment of WIS. STAT. § 705.04. And here, Carla and the Estate agree that the 

ultimate determination of the nature of the accounts turns on Clarence’s intention at 

the time he added Carla to the accounts. This is a question of fact, and we will 

uphold the circuit court’s findings of fact unless they are clearly erroneous. 

Outagamie Cnty. v. Melanie L., 2013 WI 67, ¶38, 349 Wis. 2d 148, 833 N.W.2d 

607. A finding of fact is not clearly erroneous merely because a different fact finder

could have drawn different inferences from the record. State v. Wenk, 2001 WI 

App 268, ¶8, 248 Wis. 2d 714, 637 N.W.2d 417.

¶65 Here, the circuit court found that, at the time the joint accounts were 

created in 2011, Clarence intended them to be accounts of convenience, and did not 

intend for Carla to have a right of survivorship. The court made this finding despite 

 

14

 See Roth v. Filipek, 25 Wis. 2d 528, 533, 131 N.W.2d 286 (1964) (upholding the circuit 

court’s finding that the husband “never intended to make a gift of his earnings to his wife” and 

concluding that, under the circumstances, the court erred when it determined that there was a right 

of survivorship in the account that had been opened in both of their names); Kohn, 43 Wis. 2d at 

524 (“[I]n Kelberger, ... we definitely established that the nature of a joint deposit depended 

primarily upon the intention of the depositor and this was a question of fact.” (citing Kelberger v. 

First Federal S. & L. Ass’n, 270 Wis. 434, 71 N.W.2d 257 (1955))); Pfeifer, 1 Wis. 2d at 611-12 

(“The intention is to be determined by the trier of the fact from all the evidence.”); Gray, 27 Wis. 

2d at 209 (“The trial court found that [the wife] added her husband’s name to the account ‘with the 

intention of reserving to herself the right to eliminate his name from said account at any time 

without procuring his consent[,]’” but “[t]he record [was] devoid of sufficient proof to support this 

finding.”).
No. 2022AP2036

28

the undisputed fact that someone checked boxes on the signature cards designating 

the accounts as joint accounts with rights of survivorship, and despite the bank 

employee’s testimony that she typically explains the consequences of account 

designations to customers when they open accounts.

¶66 Based on our review of the record, we conclude that the circuit court’s 

finding is not clearly erroneous. It is comprised of reasonable inferences drawn 

from the admissible evidence regarding the circumstances surrounding the creation 

of the accounts; Carla’s contemporaneous understanding of the accounts; the 

parties’ subsequent use of the accounts; and later post-creation expressions of 

Clarence’s post-creation intention.

¶67 The following evidence about the circumstances surrounding the 

creation of the joint accounts supports the circuit court’s finding regarding 

Clarence’s intention. Both accounts were originally opened as single-party 

accounts, with Clarence named as the sole owner and depositor. See Johnson, 49 

Wis. 2d at 78 (considering it significant that the accounts in question were originally 

opened by a single depositor, and not as joint accounts). Clarence added Carla as a 

joint owner several months after his son Brian, who had been assisting him with his 

finances, passed away, and at a time when Clarence was elderly, living alone, and 

lacked confidence regarding his ability to handle financial matters. See id. (finding 

depositor intended to create account of convenience where evidence showed that 

she added surviving party after learning she had cancer and spending considerable 

amount of time in the hospital).

¶68 Perhaps most significant is the timing and contents of a conversation 

between Clarence and Joan in 2011, after Brian died. Joan was concerned about 

Clarence’s ability to manage financial matters by himself, and Joan advised 
No. 2022AP2036

29

Clarence to add “one of the girls” to the accounts so that she could assist him with 

writing checks if he ever needed the assistance. It appears that Clarence added Carla 

to the accounts shortly after he had this conversation with Joan.

¶69 From all of this evidence, the circuit court could have reasonably 

inferred that Clarence followed through on Joan’s advice to add one of his daughters 

to the accounts and to create accounts of convenience. It could further reasonably 

infer that Clarence selected Carla based on her proximity to his farm. The court 

could have reasonably inferred that the designations on the signature cards were a 

mistake, and did not reflect Clarence’s true intention at the time the designations 

were made. And indeed, the court appeared to place great weight on the evidence 

about this conversation between Clarence and Joan: “While I appreciate the fact 

that there was testimony today [from the bank employee and Carla] of what the 

different accounts were, I also heard testimony [from Joan] that it was the intention 

to put one of the girls on the account in case he needed help paying his bills, and so 

I think that is the important point here.”

¶70 The circuit court could also have reasonably inferred that Clarence 

intended to create an account of convenience without survivorship rights based on 

Carla’s contemporaneous understanding of the accounts. Carla testified that, at the 

time Clarence added her to the accounts, she understood that the change in status 

would allow her to write checks on Clarence’s behalf and to pay his bills if he ever 

needed that assistance. She also testified that Clarence never told her he intended 

to make her a beneficiary of the account. See id. (finding account of convenience 

when surviving party testified that the reason the account was changed was so that 

he would be able to write checks to pay depositor’s bills); contrast Zander v. Holly, 

1 Wis. 2d 300, 313, 84 N.W.2d 87 (1957) (finding that aunt intended to create a 

joint account with no joint ownership but with a right of survivorship in favor of her 
No. 2022AP2036

30

niece, who testified that it was understood that the niece was to have no right to the 

property except upon her aunt’s death).

¶71 Clarence’s and Carla’s subsequent use (or non-use) of the accounts 

also supports the circuit court’s finding. Clarence alone received the account 

statements, and he alone deposited and withdrew money into the accounts. Carla 

testified that she did not believe she was authorized to use any of the funds for her 

own benefit, and there was no evidence that she did so. See Johnson, 49 Wis. 2d 

at 78 (finding account of convenience where there was no evidence the surviving 

party made any withdrawals for his own benefit).

¶72 Additionally, evidence postdating the creation of the joint accounts 

buttressed the circuit court’s finding that Clarence intended to create accounts of 

convenience at the time he created the accounts. Among other things, there was 

evidence from the meeting with the estate planning attorney about Clarence’s 

wishes upon his death. The evidence from this meeting supported a conclusion that 

in 2013, apart from some farm equipment that Clarence wanted to go to Carla’s 

husband, Clarence wanted his assets to be evenly divided between his daughters. 

Carla does not challenge the admissibility of any of the evidence about this meeting 

on appeal. Based on the doctrine of continuity in time of states of mind and the 

absence of any evidence of a change of heart on Clarence’s part, the circuit court 

could have reasonably inferred that Clarence held the same beliefs in 2011 when he 

added Carla to the accounts.

¶73 Finally, as discussed in greater detail above, the admissible evidence 

regarding Clarence’s conversations with Jennifer, Carla, and Joan in 2012 and 2013 

lent additional support to the circuit court’s finding that Clarence intended to create 

accounts of convenience at the time he added Carla’s name to the accounts.
No. 2022AP2036

31

¶74 Carla makes a series of arguments that the circuit court should have 

disregarded certain evidence, that it should not have credited the testimony of 

interested witnesses, or that it should have drawn different inferences from the 

available evidence.15 These arguments are all foreclosed by the standard of review 

and our determination that the inferences that the court did make were reasonable. 

See Wenk, 248 Wis. 2d 714, ¶8 (that a different fact finder could have drawn 

different inferences from the record does not render the circuit court’s findings 

clearly erroneous). Carla also argues that, even if the evidence proved that Clarence 

did not intend to create accounts with joint ownership during his lifetime, the 

evidence was not inconsistent with an intention in favor of survivorship. Yet, the 

circuit court specifically found that Clarence intended that the account “would 

eventually be split equally by his children,” and Carla has not shown us that this 

finding is clearly erroneous.

¶75 In sum, the circuit court’s finding that Clarence intended to create 

accounts of convenience with no right of survivorship for Carla is not clearly 

erroneous. We therefore conclude that the circuit court did not err when it 

determined that the accounts belong to the Estate.

By the Court.—Order affirmed.

 

15

 For example, Carla argues that the circuit court should have disregarded the proposed 

estate plan as evidence of Clarence’s intent in 2013 because Clarence did not finalize the plan; that 

the court should not have credited Jennifer’s testimony about Clarence’s statements regarding the 

accounts because Jennifer was an interested witness; that, if anything, the subsequent use of the 

accounts undermines any inference that Clarence intended to create accounts of convenience 

because she never assisted Clarence with financial matters and Clarence never instructed her to 

write checks for him or to pay his bills using the accounts; and that Clarence’s general intention for 

his assets to be split evenly among his daughters was not inconsistent with an intention that Carla 

alone would inherit funds remaining in the accounts, which comprised just eight percent of 

Clarence’s estate.