COURT OF APPEALS

DECISION

DATED AND FILED

July 18, 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. 2022AP1234 Cir. Ct. No. 2020PR3

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

IN RE THE ESTATE OF MARTIN ZOLONDICK:

MARY TAPS,

 APPELLANT,

 V.

THE ESTATE OF MARTIN ZOLONDICK,

 RESPONDENT,

ALLY BANK,

 CREDITOR-RESPONDENT.

APPEAL from a judgment of the circuit court for Marinette County: 

JANE M. SEQUIN, Judge. Affirmed in part; reversed in part and cause 

remanded with directions. 

Before Stark, P.J., Hruz and Gill, JJ. 
No. 2022AP1234

2

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. At the time of his death, Martin Zolondick1 owned 

checking and savings accounts at Ally Bank (“Ally”), along with a large number 

of certificate of deposit (“CD”) accounts. Following Martin’s death, Ally 

transferred approximately $256,000 from those accounts to Mary Taps, consistent 

with the beneficiary designations shown in Ally’s internal records. Martin’s estate 

(“the Estate”) subsequently challenged the distributions to Taps, and the circuit 

court concluded that the funds in question should be remitted to the Estate.

¶2 Taps now appeals, arguing that the circuit court erred by concluding 

that the funds in question were not controlled by a “governing instrument,” as that 

term is defined in WIS. STAT. § 854.01(2) (2021-22).2 Taps further argues that the 

relevant governing instruments “effectively dispose[d] of” the funds in Martin’s 

accounts because there is competent evidence showing that Martin intended that 

money to be distributed to Taps upon his death. See WIS. STAT. § 854.07(3). 

Accordingly, Taps asserts that Ally properly distributed the funds to her.

¶3 We conclude that the circuit court erred with respect to Martin’s 

checking and savings accounts. Those accounts were subject to governing 

instruments, as there is competent evidence that Martin intended to create payable 

on death (“POD”) accounts. Furthermore, the governing instruments effectively 

 

1

 For clarity and ease of reading, after our initial references to Martin Zolondick and his 

family members, we will refer to them by their first names.

2

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

noted.
No. 2022AP1234

3

disposed of the funds in the checking and savings accounts because there is 

competent evidence that Martin intended the money to be distributed to Taps 

following his death. We therefore reverse that portion of the court’s judgment 

requiring the funds from the checking and savings accounts to be remitted to the 

Estate. We remand for the court to determine the amount of money to which Taps 

is entitled from those accounts and to award Taps that amount.

¶4 With respect to Martin’s CD accounts, we assume, without deciding, 

that the funds in those accounts were subject to governing instruments. We 

conclude, however, that the circuit court properly determined there was no 

competent evidence of Martin’s intent regarding the disposition of the funds in the

CD accounts. Consequently, the relevant governing instruments did not 

“effectively dispose of” the funds in the CD accounts. See id. We therefore 

affirm that portion of the court’s judgment requiring the funds from the CD 

accounts to be remitted to the Estate.

BACKGROUND

¶5 Martin died intestate on December 25, 2019. He was survived by 

his three children—Adrienne Zolondick, Steven Zolondick, and Karen Granger.

Martin was also survived by Taps, who was his girlfriend and had lived with him 

for approximately thirty-eight years.

¶6 At the time of his death, Martin owned 333 CDs (each in the 

principal amount of $1,000), a checking account, and a savings account at Ally, an 

online bank. It is undisputed that at the time of Martin’s death, Taps was listed in 

Ally’s internal records as the sole POD beneficiary for the checking account, the 

savings account, and 228 of the CDs. It is further undisputed that Ally’s records 
No. 2022AP1234

4

listed six POD beneficiaries for each of the remaining 105 CDs: Taps, Adrienne, 

Steven, Karen, and Martin’s grandchildren Tayla Zolondick3and Ari Zolondick. 

¶7 Following Martin’s death, Ally distributed $256,426.77 from his 

accounts to Taps. Taps then invested that money in four CDs at Ally. Ally 

distributed approximately $18,000 to each of the other five named beneficiaries of 

Martin’s accounts.

¶8 The Estate subsequently challenged Ally’s distributions to Taps, 

filing a petition asking the circuit court to determine whether any person had 

“concealed, stolen, conveyed, or disposed of property of the estate.”

4

 See WIS.

STAT. § 879.61. During the circuit court proceedings, the parties stipulated that 

Ally had distributed the funds from Martin’s accounts in a manner consistent with 

the POD beneficiary designations shown in its internal records. The Estate 

argued, however, that the funds distributed to Taps were not controlled by any 

“governing instrument,” as that term is defined in WIS. STAT. § 854.01(2), and 

were therefore subject to probate and should have been paid to the Estate. The 

Estate further argued that there was no “competent evidence” of Martin’s intent 

regarding the disposition of the funds in his various Ally accounts.

¶9 Following an evidentiary hearing, the circuit court issued a written 

decision and order. The court made a number of factual findings, which are 

 

3

 Throughout the appellate record, this individual’s first name is variously spelled 

“Tayla,” “Talya,” and “Talia.” The parties do not dispute that these spellings all refer to the same 

individual, who is one of Martin’s grandchildren. Following the circuit court’s lead, we will refer 

to this individual as “Tayla,” which reflects the spelling that Martin provided to an Ally 

representative during a recorded January 12, 2019 phone call.

4

 The Estate did not challenge Ally’s distributions to Martin’s children and 

grandchildren.
No. 2022AP1234

5

discussed in greater detail below. Based on those factual findings, the court 

concluded that the funds in Martin’s Ally accounts were “not subject to a 

governing instrument as defined by” WIS. STAT. § 854.01(2). The court also 

agreed with the Estate that there was no “competent evidence” regarding Martin’s 

intent as to the disposition of the funds in the Ally accounts. The court therefore 

ordered that the funds “shall be remitted to the Estate.”

¶10 The circuit court subsequently entered a judgment reiterating that the 

“[f]unds currently being held by [Ally,] which reflect assets of [Martin] transferred 

to [Taps] by POD Designation, shall be remitted to the Estate.” However, the 

court stayed the enforcement of its judgment pending the resolution of this appeal.

¶11 Additional facts are included below as relevant to our discussion of 

the parties’ arguments.

DISCUSSION

I. Applicable legal principles

¶12 On appeal, we will uphold the circuit court’s findings of fact unless 

they are clearly erroneous. See WIS. STAT. § 805.17(2). A finding of fact is 

clearly erroneous when it is against the great weight and clear preponderance of 

the evidence. Phelps v. Physicians Ins. Co. of Wis., 2009 WI 74, ¶39, 319 

Wis. 2d 1, 768 N.W.2d 615. Whether the facts fulfill a particular legal standard, 

however, is a question of law that we review independently. “K” Care, Inc. v. 

Town of Lac du Flambeau, 181 Wis. 2d 59, 65, 510 N.W.2d 697 (Ct. App. 1993).

¶13 In this appeal, the first question is whether the funds in Martin’s Ally 

accounts were subject to governing instruments. It appears to be undisputed that, 

if the funds were not subject to governing instruments, they should have been 
No. 2022AP1234

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distributed to the Estate. The term “governing instrument” includes “an 

instrument under [WIS. STAT.] ch. 705.” WIS. STAT. § 854.01(2). An instrument 

under ch. 705, in turn, includes a POD account. See WIS. STAT. § 705.02(1)(b).

¶14 Thus, to determine whether the funds in Martin’s Ally accounts were 

subject to governing instruments, we must address whether Martin created valid 

POD accounts under Wisconsin law. Language “in substantially the following 

form” is effective to create a POD account “when conspicuously printed or 

typewritten immediately above or adjacent to the place for the signatures of the 

parties to the account:” “THIS ACCOUNT/CERTIFICATE OF DEPOSIT IS 

OWNED BY THE PARTY NAMED HEREON. UPON THE DEATH OF SUCH 

PARTY, OWNERSHIP PASSES TO THE P.O.D. BENEFICIARY(IES) NAMED 

HEREON.” WIS. STAT. § 705.02(1)(b). Alternatively,

[a]ny deposit made to an account created on or after 

July 1, 1975, and within the scope of this subchapter, which 

account is not evidenced by an agreement containing 

language in substantial conformity with this 

section ... shall nonetheless be deemed to create ... [a] 

P.O.D. relationship ... in accordance with whatever 

competent evidence is available concerning the depositor’s 

intent at the time the account was created.

Sec. 705.02(3).

¶15 If Martin did create valid POD accounts—that is, if governing 

instruments did control the disposition of the funds in Martin’s accounts—then the 

next question is whether those governing instruments effectively disposed of the 

money in Martin’s accounts. “If a governing instrument other than a will does not 

effectively dispose of an asset that is governed by the instrument, that asset shall 

be paid or distributed to the transferor’s probate estate.” WIS. STAT. § 854.07(3). 

The parties appear to agree that, in order to determine whether any governing 
No. 2022AP1234

7

instruments in this case effectively disposed of the funds in Martin’s accounts, we 

must decide whether there is competent evidence of Martin’s intent regarding the 

beneficiary designations for his accounts. See WIS. STAT. § 705.02(3).

II. Martin’s checking and savings accounts

¶16 It is undisputed that Martin’s checking and savings accounts at Ally 

were not evidenced by any provision in substantial conformity with the language 

set forth in WIS. STAT. § 705.02(1)(b). Nevertheless, a deposit made to those 

accounts on or after July 1, 1975, was sufficient to create a POD relationship “in 

accordance with whatever competent evidence is available concerning [Martin’s]

intent at the time the account was created.” See § 705.02(3). 

¶17 The parties agree that Ally’s internal records show that Martin’s

checking and savings accounts were POD accounts. During the evidentiary 

hearing, Ally submitted Exhibits 1, 2, and 25. Jacqueline Lemma, a manager at 

Ally, testified that Exhibit 1 is the “full account history” for each of Martin’s Ally 

accounts. Lemma testified that Exhibit 2 is a list of Martin’s Ally accounts at the 

time of his death, with the account beneficiaries identified. Lemma explained that 

Exhibits 1 and 2 were created “to accurately identify the accounts that were still 

active at [Martin’s] death and who the beneficiary was” for each account.

¶18 Lemma further testified that Exhibit 25 is a “screenshot” from Ally’s 

internal system, which shows “the summary of the decedent’s account[s] at the 

time of his death ... as well as showing that all the accounts were listed as POD.” 

Exhibit 25 also lists the beneficiaries for each account, as reflected in Ally’s 

internal records.
No. 2022AP1234

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¶19 Exhibit 1 shows that Martin’s checking account was opened on 

February 17, 2016, and his savings account was opened on December 16, 2015. 

Exhibit 25 shows the same opening dates for both accounts and lists the account 

type for each as “Single with POD Beneficiary.” Although Ally’s internal records 

do not specifically indicate that the checking and savings accounts were 

designated as POD accounts on the dates they were opened, there is no evidence in 

the record to suggest that the checking and savings accounts were ever anything 

other than POD accounts.

¶20 More importantly, Exhibit 1 shows that Taps was named the sole 

beneficiary of Martin’s checking account on March 19, 2018. Exhibit 1 also 

shows that Taps was named the sole beneficiary of Martin’s savings account on 

May 24, 2016. Taps was subsequently removed as the beneficiary of Martin’s 

savings account on August 11, 2017, but she was renamed the sole beneficiary of 

that account the same day. Martin’s designation of Taps as the beneficiary for his 

checking and savings accounts provides competent evidence that he created POD 

accounts as of the dates the beneficiary designations were made, even if the 

accounts were not POD accounts when they were initially opened.

¶21 Moreover, the record contains a partial recording and transcript of a 

phone call that Martin made to Ally on January 12, 2019. We discuss this call in 

greater detail below, as it relates to our analysis of Martin’s CD accounts. As 

relevant here, during the recorded portion of the January 12 call, Martin confirmed 

that Taps was to receive the funds from his checking and savings accounts 

following his death.

¶22 Taken together, the January 12 phone call and Ally’s internal records

provide competent evidence that Martin intended his checking and savings 
No. 2022AP1234

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accounts to be POD accounts. See WIS. STAT. § 705.02(3). Even if the checking 

and savings accounts were not initially POD accounts at the time they were 

opened, there is competent evidence that they were created as POD accounts on 

March 19, 2018, and May 24, 2016, respectively—the dates when Martin named 

Taps as the beneficiary of the accounts. Accordingly, we conclude that the 

checking and savings accounts were subject to governing instruments, as that term 

is used in WIS. STAT. § 854.01(2).

¶23 In arguing to the contrary, the Estate asserts that “Wisconsin law 

prefers written and signed governing instruments[,] and there is none here.” We 

do not find this argument convincing. Although the law may favor governing 

instruments that are written and signed, WIS. STAT. § 854.01(2) expressly states 

that a “governing instrument” includes “an instrument under [WIS. STAT.]

ch. 705.” While WIS. STAT. § 705.02 prefers a written governing instrument that 

contains the recommended wording, § 705.02(3) also permits other evidence to 

support a conclusion that a POD account was created and intended. 

Section 705.02(3) does not require that evidence to be a written governing 

instrument. 

¶24 The Estate also argues that Taps stipulated at trial that “Ally’s 

internal computer records are not compliant with Wisconsin law or enforceable for 

designation of POD beneficiaries.” According to the Estate, this stipulation “bars 

the argument that ... Ally’s records are governing instruments.” This argument

fails because the Estate misstates the terms of the parties’ stipulation. The parties 

merely stipulated that Ally had distributed the funds from Martin’s accounts in 

accordance with the beneficiary designations shown in its internal records. The 

Estate’s counsel clarified that the Estate was not stipulating that Ally’s internal 

records were compliant with Wisconsin law, but Taps never stipulated that Ally’s 
No. 2022AP1234

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internal records were not compliant with Wisconsin law. Consequently, the 

stipulation does not bar Taps from arguing that Martin’s checking and savings 

accounts were subject to governing instruments.

¶25 Having concluded that Martin’s checking and savings accounts were 

subject to governing instruments, we must next consider whether the governing 

instruments effectively disposed of the funds in those accounts. See WIS. STAT.

§ 854.07(3). Taps argues that the governing instruments effectively disposed of 

the funds because there is competent evidence that Martin intended the funds to be 

distributed to Taps upon his death. See WIS. STAT. § 705.02(3). We agree.

¶26 As discussed above, Ally’s records show that Taps was named the 

sole beneficiary of Martin’s checking and savings accounts on March 19, 2018, 

and May 24, 2016, respectively. Although Taps was subsequently removed as the 

beneficiary of Martin’s savings account on August 11, 2017, she was renamed the 

sole beneficiary of that account the same day. Ally’s records do not reflect any 

subsequent changes to the beneficiary designations for Martin’s checking and 

savings accounts. Exhibits 2 and 25 show that Taps remained the sole POD 

beneficiary of those accounts at the time of Martin’s death.

¶27 Moreover, as noted above, Martin confirmed during the recorded 

portion of the January 12, 2019 phone call that he wanted the funds from his 

checking and savings accounts to go to Taps following his death. There is no 

evidence suggesting that Martin intended any other person to receive the funds 

from those accounts or that Martin did not intend Taps to receive that money. On 

this record, we agree with Taps that there is competent evidence Martin intended 

her to be the beneficiary of his checking and savings accounts. As such, the 

relevant governing instruments effectively disposed of the funds in those accounts.
No. 2022AP1234

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¶28 The Estate argues that we cannot rely on Exhibits 1, 2, and 25 as 

competent evidence of Martin’s intent because those documents were created by 

Ally following Martin’s death, not “at the time the accounts were opened.” We 

reject this argument because WIS. STAT. § 705.03(2) does not limit us to 

considering evidence that was in existence at the time an account was opened. 

Instead, we read that statute as allowing us to consider any competent evidence 

that bears on the owner’s intent at the time the account was created as a POD 

account—irrespective of when the evidence came into existence. 

¶29 Here, regardless of whether the checking and savings accounts were 

POD accounts at the time they were opened, Ally’s records show that Martin 

named Taps as the sole POD beneficiary of the checking account on 

March 19, 2018, and of the savings account on May 24, 2016. Thus, even if the 

checking and savings accounts were not initially POD accounts, there is competent 

evidence that Martin created them as POD accounts as of those dates. 

Furthermore, there is competent evidence that Martin intended Taps to be the sole 

beneficiary from those dates onward. The fact that this evidence was not in 

existence at the time the accounts were opened is immaterial.

¶30 The Estate also cites our supreme court’s decision in Bruckner v. 

Prairie Federal Savings & Loan Ass’n, 81 Wis. 2d 215, 260 N.W.2d 256 (1977), 

in support of its claim that there is no competent evidence regarding Martin’s 

intent. The issue in Bruckner was whether there was “sufficient evidence to show 

that the decedent, John L. Bruckner, created a savings account with the 

Prairie du Chien Federal Savings and Loan Association payable on his death to 

Lee J. Bruckner, a nephew.” Id. at 216. John had opened the account on 

November 9, 1959, and had executed a signature card for the account on the same

date. Id. At the time the account was opened, the bank’s records contained no 
No. 2022AP1234

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reference to the account being payable on death to Lee. Id. at 216-17. Following 

John’s death in 1974, the bank “refused to turn over the assets [to John’s estate], 

because of an entry on the signature card which recited ‘POD to Lee J. 

Bruckner.’” Id. at 217. The same entry appeared on the second of three pages of 

the bank’s ledger card for John’s account. Id.

¶31 The evidence at trial showed that no bank employee had any 

recollection of when the POD entries were made on the signature and ledger cards. 

Id. In addition, there was “no evidence” that John had “ever requested or applied 

for a POD account.” Id. at 218. On this record, our supreme court concluded that 

the POD entries on the signature and ledger cards were not competent evidence of 

John’s intent. Id. at 222-23. The court reasoned that because there was no 

evidence that the entries were made at John’s request, there were no grounds to 

conclude that the entries were an expression of John’s intent “and not that of a 

third person.” Id. at 222.

¶32 The Estate argues that, under Bruckner, a “bank-generated record,” 

standing alone, is insufficient to provide competent evidence that an account 

owner intended to create a POD account or designate a particular POD 

beneficiary. Here, however, we do not rely on Ally’s internal records alone as 

evidence that Martin intended his checking and savings accounts to be POD 

accounts with Taps as the sole beneficiary. We also rely on Martin’s own 

confirmation during the January 12, 2019 phone call that he wanted Taps to 

receive the funds from the checking and savings accounts following his death. 

Unlike the circumstances in Bruckner, the January 12 phone call provides 

evidence to support a conclusion that the entries in Ally’s records were an 

expression of Martin’s intent “and not that of a third person.” See id.
No. 2022AP1234

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¶33 We therefore reverse that portion of the circuit court’s judgment 

ordering that the funds from Martin’s checking and savings accounts be remitted 

to the Estate. We remand for the court to determine the amount of money to 

which Taps is entitled and to award that amount to Taps.

III. Martin’s CD accounts

¶34 We next consider whether the circuit court properly determined that 

the funds from Martin’s CD accounts should be remitted to the Estate. In 

addressing this issue, we assume, without deciding, that governing instruments 

controlled the disposition of the funds in Martin’s CD accounts. We nevertheless 

affirm the court’s decision with respect to the CD accounts because we agree that 

there is no competent evidence of Martin’s intent regarding the beneficiary 

designations for those accounts.

¶35 As noted above, it is undisputed that Martin owned 333 CDs at Ally

at the time of his death. It is further undisputed that, at the time of Martin’s death, 

Ally’s internal records listed Taps as the sole POD beneficiary for 228 of the CDs 

and listed Taps, Adrienne, Steven, Karen, Tayla, and Ari as co-beneficiaries for 

the remaining 105 CDs. Taps argues that these internal records provide competent 

evidence of Martin’s intent regarding the beneficiary designations for his various 

CD accounts. Like the circuit court, however, we conclude that other evidence 

raises questions regarding Martin’s intent.

¶36 During the evidentiary hearing, Taps introduced Exhibit 26, which 

purports to be a series of notes made by Ally employees regarding telephone calls 

with Martin about his accounts. According to Exhibit 26, Martin called Ally on 

January 8, 2019, and asked to open 450 fourteen-month CDs, each in the amount 

of $1,000. Martin asked Ally to provide a single welcome kit for all of these 
No. 2022AP1234

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accounts and asked that “beneficiaries [be] assigned to his profile as a whole and 

not the accounts individually” in the following amounts: “*Mary $240K* *Adrian 

$100K*[5] *Karen $100K* *Steven $30K*.” Ally denied both of these requests, 

noting that Martin would receive individual welcome kits for each account and 

that beneficiaries “need to be assigned to each account.” Ally advised Martin that 

“someone will reach out to him by EOD to confirm whether we can open that 

many accounts.”

¶37 Martin apparently called Ally again on January 9, 2019, asking to 

“remove Steven’s name from his list of requested beneficiaries, and replace it with 

two names, [Tayla] and Ari, each of who would receive 30k.” The agent noted, 

“Confirmed with customer that I would update request, but no promises were 

made.”

¶38 Exhibit 26 shows another call between Martin and Ally on 

January 10, 2019. The agent’s note states: “[C]ustomer wanted to finish opening 

the ... 450 select cd. [C]ustomer advise that previous agent that started with the 

217 account[s] got sup approval to open all of them but call disconnect when 

phone died.” Martin again requested to receive only one welcome kit for all of the 

accounts, and the agent told Martin that only one welcome kit would be sent. The 

January 10 note ends with the statement: “Pass call back to agent to complete 

other account openings.”

¶39 Exhibit 26 reflects that another phone call occurred, apparently on 

either January 10 or 12, 2019, during which Martin “started asking about welcome 

 

5

 This presumably referred to Martin’s daughter Adrienne.
No. 2022AP1234

15

kits again” and then stated he wanted all of the CDs listed on one sheet of paper. 

The agent advised that written approval would be required for that request, and 

Martin responded that he wanted to close all of his CDs if the request could not be 

approved. The agent then “suggested that we stop opening accounts until he gets 

that approval or he could end up on the phone for a long while just to close 

accounts.” Exhibit 26 shows that, at the time of this phone call, 107 CDs had 

already been opened.

¶40 Exhibit 26 shows that at least three additional phone calls took place 

on January 12, 2019. The agent’s notes from the first of those calls state:

[O]pen 450 Select cds - customer is requesting to close all 

his NPCD wants to open 450 x 1000 each 14m CD. He 

wants 230 x 1000 cd beneficiary Mary Tap there is 10 left 

for Mary, 100x 1000 for Karen, 100 x 1000 for Adrienne, 

10x 1000 for [Tayla], and 10 x 1000 for [Ari]. [T]hat 

makes 450. [T]here 217 left to do.

¶41 Ally provided a recording of the first two hours of this 

January 12, 2019 phone call, and the record also contains a transcript of that 

recording. Although Ally’s system recorded two hours of this call, it is undisputed 

that the call actually lasted longer than two hours. The transcript shows that 

during the recorded portion of the call, Martin initially stated that he wanted to 

close his existing CD accounts and “take all [his] assets and put it into individual 

$1,000 CDs,” leaving $10,000 in his savings account. In response to that request, 

an Ally representative, “Kat,” closed Martin’s existing CD accounts and 

transferred the funds from those accounts into his checking account for the 

purpose of purchasing the new CDs.

¶42 Kat then informed Martin that he had $457,748.04 in his checking 

account, which would allow him to purchase 457 $1,000 CDs. Martin responded 
No. 2022AP1234

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that Kat should “make it 460.” Kat told Martin that, in order to do that, she would 

need to transfer $2,251.96 from his savings account into his checking account, 

which would leave only $7,748.04 in his savings account. Martin indicated that he 

wanted to leave more than $7,748.04 in his savings account, and Kat then 

suggested opening only 450 $1,000 CDs, instead of 460. After further discussion, 

Martin agreed with that suggestion.

¶43 Kat then asked Martin about the beneficiaries for the new CDs. 

Martin initially stated that he wanted $240,000 to go to Taps, $100,000 to go to 

Adrienne, and $100,000 to go to Karen. Because those amounts added up to 

$440,000, Kat told Martin that he had $10,000 left in CDs for which he needed to 

designate a beneficiary. Martin expressed confusion as to whether the amounts 

that he and Kat had been discussing included his checking and savings accounts, 

and Kat clarified that Martin had a total of $467,748.04 at Ally, including the 

funds in his checking and savings accounts. Martin responded:

Okay. Why don’t we make it 450—let’s see, 460. I’m 

trying to break it up. I wanted to put, so 467, so 240—why 

don’t we make it 230—230, 100, 100, so that’s 430, 530, 

630, 630, and 15 and 15 for the last two. If I have 230, 

100, 100, that’s 430.

¶44 Kat informed Martin that this would leave $20,000 in CDs for which 

he needed to designate a beneficiary. Martin replied, “Okay. So make it 10 and 

10 for [Tayla] and Ari, 10 for [Tayla] and 10 for Ari.” Kat responded, “Okay. So, 

now, we’re going to do 450 at 1,000, and so Mary’s going to have 230 of it. Your 

two daughters are going to have 100,000 apiece, and then Ari and [Tayla are]

going to have 10,000.” Martin indicated that was correct.

¶45 Kat subsequently put Martin on hold multiple times while she 

worked to open the requested CDs. Near the end of the recorded portion of the 
No. 2022AP1234

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call, Kat told Martin that she had opened eighteen $1,000 CDs and was working to 

complete the rest. As noted above, at least two additional phone calls occurred 

between Martin and Ally representatives on January 12. The appellate record does 

not contain recordings of those calls.

¶46 The parties agree that, ultimately, only 338 CDs were opened in 

Martin’s name on January 12, 2019, rather than 450. It is further undisputed that, 

according to Martin’s February 5 bank statement, 233 of the CDs were set up as 

POD accounts and 105 were “in trust for” (ITF) beneficiary accounts. As of

February 5, Martin still had $129,319.25 in his Ally savings account. On 

February 12, Martin made four separate transfers of $25,000 from his Ally savings 

account to Synchrony Bank. On April 19, Martin called Ally and asked to change 

his 105 ITF CDs to POD CDs. Ally implemented that request on May 2. In 

November 2019, Martin closed five of his Ally CDs that listed Taps as the sole 

beneficiary.

¶47 The circuit court stated in its written decision that the “best 

competent evidence of [Martin’s] intent at the time the accounts were created 

would have been the transcript of the recording from the January 12, 2019 phone 

call,” but “[u]nfortunately, the recording is not of the entire call.” The court noted 

that the transcript of the call did not “reflect, in [its] entirety, the accounts that 

were ultimately established as a result of the call. The recording does not reflect, 

in [its] entirety, the beneficiaries that were ultimately named on the accounts 

established.” The court found that while there were some consistencies between 

Martin’s instructions during the January 12 call and the ultimate beneficiary 

designations shown in Ally’s internal records, there were also inconsistencies. 

The court also noted that the parties agreed that additional phone calls had taken 

place, but those phone calls were not recorded.
No. 2022AP1234

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¶48 Next, the circuit court found that Martin “change[d] his mind 

multiple times as to what he want[ed] to do” during the recorded January 12 call. 

The court then reiterated that the beneficiaries ultimately listed in Ally’s records 

did not “coincide” with Martin’s instructions during the recorded portion of the 

January 12 call. The court explained:

The [call] reflects that [Martin’s] son, [Steven], is not a 

beneficiary. In fact, he ultimately was named as a 

beneficiary. The [call] indicates that Mary Taps would not 

be listed on 105 [CDs] created. In fact, she [ultimately]

was named with the other 5 beneficiaries. The [call]

indicates an intention that each of [Martin’s] two daughters 

would receive $100,000. This was not the end result. The 

[call] indicates an intention to have his 2 grandchildren 

receive $10,000 each. This was not the end result.

Given these inconsistencies between the January 12 call and the beneficiary 

designations shown in Ally’s internal records, the court stated it was “impossible” 

for the court to find “that any competent evidence exists to determine [Martin’s] 

true intent at the time that the accounts were established as required under [WIS.

STAT. §] 705.02(3).”

¶49 None of the circuit court’s factual findings are clearly erroneous, as 

they pertain to Martin’s CD accounts. See WIS. STAT. § 805.17(2). In particular, 

the court’s finding that the recorded portion of the January 12 call is inconsistent 

with the beneficiary designations for the CD accounts shown in Ally’s internal 

records is not against the great weight and clear preponderance of the evidence. 

See Phelps, 319 Wis. 2d 1, ¶39. The record also supports the court’s finding that 

Martin changed his mind multiple times during the January 12 call regarding the 

beneficiary designations for his CD accounts. Furthermore, the court correctly 

noted that the parties agreed there were additional phone calls between Martin and 

Ally on January 12, which were not recorded. Those phone calls could have shed 
No. 2022AP1234

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light on Martin’s intentions with respect to the beneficiary designations for the CD 

accounts; however, without knowing the contents of those calls, we have no way 

of knowing whether they support the beneficiary designations for the CD accounts 

that were shown in Ally’s internal records at the time of Martin’s death. On this 

record, we agree with the circuit court that there was no “competent evidence” of 

Martin’s intent regarding the beneficiary designations for the CD accounts.

¶50 Taps argues that Ally’s Exhibits 1, 2, and 25—which were compiled 

from Ally’s internal records—are competent evidence of Martin’s intent regarding 

the beneficiary designations for the CD accounts. According to Taps, those 

exhibits “clearly show[]” that Taps was the sole beneficiary of 228 CD accounts at 

the time of Martin’s death and was a co-beneficiary of the remaining 105 CD 

accounts. As discussed above, however, a bank’s internal records, without more, 

are insufficient to provide competent evidence regarding a depositor’s intent. See 

Bruckner, 81 Wis. 2d at 222-23. For Martin’s checking and savings accounts, 

there was additional evidence of Martin’s intent—namely, Martin’s confirmation 

during the January 12 phone call that Taps was to receive the funds from the 

checking and savings accounts following his death. There is no similar 

corroborating evidence of Martin’s intent regarding the beneficiaries for the CD 

accounts. To the contrary, as explained above, Martin’s expressed intentions 

during the January 12 phone are inconsistent with the ultimate beneficiary 

designations for the CD accounts shown in Ally’s records.

¶51 Taps also argues that the parties’ stipulation that Ally distributed the 

funds from Martin’s accounts in accordance with its internal records “is competent 

evidence that Martin intended for [Taps] to be beneficiary of his accounts.” We 

disagree. The fact that Ally distributed the funds in accordance with its internal 

records does not prove that Ally’s internal records accurately reflected Martin’s 
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intent regarding the beneficiary designations for the CD accounts. The Estate 

stipulated to the former proposition only; it did not stipulate to the latter.

¶52 Taps next argues that the recorded portion of the January 12 phone 

call clearly shows that Martin “wanted [Taps] to be beneficiary of 230 CDs, the 

savings account and the checking account.” Taps argues, “Although the transcript 

of the January 12 phone call does not match the internal records of [Ally] as it 

pertains to the children’s and grandchildren’s distributions, it is nevertheless 

evidence of [Martin’s] intent to make [Taps] a beneficiary of his accounts.” We 

reject this argument because the inconsistencies between the January 12 call and 

Ally’s internal records are not limited to the beneficiary statuses of Martin’s 

children and grandchildren. The January 12 call and Ally’s internal records are 

also inconsistent with respect to Taps as a beneficiary of the CDs, as Ally’s 

internal records list Taps as a co-beneficiary of 105 of Martin’s CDs, which is 

inconsistent with Martin’s instructions during the January 12 call.

¶53 Finally, Taps argues that Martin’s actions after the January 12 call 

confirm that he wanted Taps to receive “at least $230,000” from the CD accounts. 

In particular, Taps asserts that after Martin received his February 5, 2019 bank 

statement, he was clearly aware that he had a significant amount of money at Ally 

that had not been invested in CDs, given that he transferred $100,000 from Ally to 

Synchrony Bank on February 12. Taps also observes that, in April 2019, Martin 

asked to change 105 of his CDs—which listed Taps and his children and 

grandchildren as co-beneficiaries—from ITF accounts to POD accounts. Taps 

asserts: “Martin’s transfer of $100,000 to Synchrony Bank and his request to 

change the ITF beneficiary accounts to POD beneficiary [accounts] show that 

Martin reviewed his bank statements and was aware that he had not set up 450 CD 

accounts as stated in the partial recording of the January 12 phone call.” 
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According to Taps, these actions show that “there must have been a subsequent 

discussion between Martin and [Ally] in which he changed his designations of 

beneficiaries, as reflected in [Ally’s] Exhibits 1, 2, and 25.”

¶54 We agree with Taps that Martin’s transfer of $100,000 from Ally to 

Synchrony Bank shows that Martin knew he had not purchased 450 $1,000 CDs 

from Ally. We do not agree, however, that Martin’s transfer of that money or his 

request to change certain CDs from ITF accounts to POD accounts shows Martin’s 

intent regarding the beneficiary designations for his CD accounts. Furthermore, 

any speculation about what Martin may have said during his unrecorded

conversations with Ally representatives does not provide competent evidence of 

his intent, as required by WIS. STAT. § 705.02(3). Notably, Lemma was the only 

Ally employee to testify at the evidentiary hearing. No Ally employee who 

actually spoke to Martin on January 12—or at any other time—provided any 

testimony about Martin’s intent with respect to the beneficiary designations for the 

CD accounts.

¶55 Ultimately, while Ally’s internal records reflect certain beneficiary 

designations for the CD accounts, those designations conflict with Martin’s 

statements during the recorded portion of the January 12 phone call. Under these 

circumstances, we agree with the circuit court that there is no competent evidence 

of Martin’s intent regarding the beneficiary designations for the CD accounts.

Accordingly, the court properly ordered that the disputed funds from the CD 

accounts be remitted to the Estate. See WIS. STAT. § 854.07(3).

¶56 No costs are awarded to any party.
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By the Court.—Judgment affirmed in part; reversed in part and cause 

remanded with directions.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.