No. 2--05--0600 filed 4/28/06

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

______________________________________________________________________________ In re ESTATE OF ROBERT D. SHEA,) Appeal from the Circuit Court Deceased ) of Du Page County. ) ) No. 03--P--502 (Edward J. Shea, as Ex'r of the Estate of ) Robert D. Shea, Deceased, Petitioner- ) Honorable Appellee, v. Mary Brennan, Respondent- ) Kenneth L. Popejoy, Appellant (William Brennan, Respondent)). ) Judge, Presiding.

______________________________________________________________________________ JUSTICE O'MALLEY delivered the opinion of the court: Respondent, Mary Brennan, appeals an order ruling that two bank accounts, on which she was listed as a joint tenant with decedent, Robert D. Shea, belong to decedent's estate. Her principal contention is that the court erred in making that finding when petitioner (Edward J. Shea, executor of decedent's estate) failed to show that decedent did not intend to make a gift to respondent effective as of his death. Under Murgic v. Granite City Trust & Savings Bank , 31 Ill. 2d 587 (1964) , a court must presume that when a bank account holde r lists another person as a joint tenant on the account, he or she intends to make a gift of a joint tenancy interest in the account to that person. We hold that a party rebuts the presumption by show ing by clear and convincing evidence that the account holder did not intend a present gift. We therefore conclude th at the court was correct to find that petitioner rebutted the Murgic presumption of a gift. Once a party claiming an account has rebutted the presumption, it must still show entitleme nt to that account by the preponderance of the evidence. Because petitioner presented substantia l evidence that deceden t intended the accounts toNo. 2--05--0600

- 2 - be convenience accounts, but respondent presented only minimal evidence that decedent intended her to have the accounts, we hold that the court was correct to rule that the accounts are the estate's. We therefore affirm its judgment. At the outset, we must decide what evidence we may consider in reviewing this case. We deem to be a part of the evidence a collection of e xhibits that petitioner filed as an attachment to his

memorandum of law in support of his petition for a citation to recover assets against respondent. The record as a whole convinces us that the court cons idered this collection, or at least some individual exhibits, as evidence despite never having formally admitted any of the exhibits at the evidentiary hearing. Nevertheless, neither party protested the court's use of these exhibits either below or on appeal; in fact, both cite certain exhibits extensivel y in their appellate briefs. Obviously, the parties have waived any possible claim of error based on th e court's use of the exhibits. 188 Ill. 2d R. 341(e)(7). However, we note to th e court and parties that they would have simplified our review had they followed established patterns for admitting evidence. BACKGROUND Decedent died on April 11, 2003. His wife had predeceased him, dying on March 7, 2002,
and he was survived only by petitioner, his brother. Petitioner became decedent's executor on the death of Mildred Doyle, his original executor. Petitioner petitioned the court to issue a citation to recover assets against respondent, who was named with decedent as join t tenant of two bank account s, one checking and one savings. He alleged that she was in a fiduciary relat ionship with decedent, as tr ustee of a trust decedent created
for his own benefit, so she had the burden to prove that any gift from decedent to her was not the result of undue influence. Further, he alleged that decedent had intended the accounts to be convenien ce accounts and had never
intended respondent to have the funds on his death.No. 2--05--0600

- 3 - Petitioner filed a memorandum of law in support of the petition, to which he attached the collection of exhibits discussed above. These included a transcript of petitioner's deposition of respondent and copies of a check register. In the transcript, respondent asserted th at she believed that the money in the accounts was to become hers when decedent died. She said that her belief was based on the legal e ffect of the joint tenancy. However, when petitioner asked her if, had she wanted, she could have spent all the money in the accounts in 2002 because it was a joint tenancy, she said that sh e could have. Respondent told petitioner that the
savings account contained approxima tely $30,000. According to the check register, during decedent's life, respondent made one withdrawal from that account, transferring $1,000 to the checking account. The court granted the petition and issu ed the citation. At the beginning of the evidentiary hearing on the

citation, respondent stipulated that she had not paid gift tax on the money in the two accounts that she held in joint tenancy with decedent, nor had she filed a gift tax return reporting her receipt of the money. John Doyle, Mildred Doyle's son, testified for the estate. He said that his family and the Sheas had

a close relationship and that he knew respondent and her husband as the Sheas' neighbors. He recalled a

conversation between his mother and decedent that took place the April, May, or June after decedent's wife died (that is, in 2002). Decedent to ld Mildred that he needed to have someone "to be put on the accounts"
to pay his bills if he could not, bu t Mildred told decedent that her health was not good enough to take on the
responsibility. J. Scott Marsik also testified for the estate. He met decedent when they were coworkers at a realestate company; after Marsik became a lawyer, decedent became his client. Marsik recalled that, in October or November of 2002, decedent came to consult him a bout estate planning and related matters. Decedent
wanted to place his real property in a revocable trus t, and Marsik drafted the relevant document. That document is a part of the collection of exhibits. It names decedent as the origin al trustee and respondent as successor trustee. Decedent also expressed concern to Marsik that he would have no on e to pay his bills if heNo. 2--05--0600

- 4 - became disabled. He discussed the possibility of solving this problem by adding a friend's or a neighbor's name to

an account or accounts. Petitioner then called respondent. Responden t agreed that decedent had named her the successor trustee of his revocable trust. She had signed a signatu re card for decedent's bank accounts, thus becoming a joint tenant, in December 2002 or sometime before, which was before she became the trustee. She never
deposited money into the accounts. She did nothing with the checking account until April 2003, when she wrote 15 checks on it for decedent's expenses. She st ipulated that after decedent di ed, she closed the accounts and transferred the money into an account she held jointl y with her husband. She testified that she never did any
transactions with the savings account until she closed it. However, as indicated above, the copy of the check
register for the period in which she was writing check s on the checking account shows one notation of a $1,000 "deposit from Sav.," and it also shows that the balance of the account was always below $2,000. In closing, petitioner argued that all the evidence pointed toward decedent having added respondent to the accounts as a convenience. He argued that respondent's fai lure to list the accounts as a gift on a tax return showed that she also saw it as a convenience. Fin ally, he argued that, becaus e respondent was decedent's fiduciary, any presumption of a gift vanished because she had to overcome a presumption that such a gift would be

the result of undue influence. On March 22, 2005, the court issued a letter opinion. It found that petitioner had rebutted the Murgic presumption of a gift by clear and convincing evidence . It ruled that the evidence clearly showed that

decedent intended the accounts as convenience accounts. It found facts showing th at decedent intended to create convenience accounts. These included that after his wife died, decedent put all his a ssets except the two bank
accounts into a revocable trust and that respondent wa s not decedent's first choice as joint tenant--he first approached Mildred Doyle to serve. The court listed six further bases for its find ing: (1) respondent neverNo. 2--05--0600

- 5 - contributed to either account; (2) sh e never used the money in the accounts for herself while decedent was alive; (3) she used the checking account only in April 2003, the month decedent died, when she wrote 15 checks covering his expenses; (4) respondent could not provide an y evidence that decedent in tended the funds as a gift; (5) she did not file a gift tax return or pay a gift ta x on the money; and (6) she did not exercise "exclusive control" over the funds until decedent died, when she put the money into a certificate of deposit. Respondent moved to reconsider. She argued, among othe r things, that the burden was on petitioner to show not only that decedent intended to use the accounts as convenience accounts whi le he was alive, but also
that he intended his estate, and not respondent, to have th em when he died. At the hearing on the motion, her
attorney asserted that her nonfiling of a gift tax return had to be viewed in that context: "[T]he fact that she only wro te checks for him would not affect the joint tenancy as to what's going to happen upon his death.*** [S]he never filed a gift tax return *** becaus e there was no completed gi ft. If all the money
had been used for him during his lifetime, there neve r would have been a gift to her, which is very
possible, and that she did not have exclusive con trol of it; she did not have, until he died ***." Respondent noted that petitioner had ne ver produced evidence that decedent had said that he wanted the money in his estate when he died. Further, petitioner did no t produce anything decedent wrote showing such intent. The court denied the motion to reconsider and gran ted petitioner's motion for turnover of funds. On
appeal, respondent argues that petitioner failed to overcome by clear and convincing evidence Murgic 's presumption of a gift. Her position is that petitioner could overcome this presumption only by showing that decedent not only intended the accounts to function as convenience accounts while he was alive, but also that he did not intend her to have the funds when he died. She positively asserts that she believed that she was to own the accounts only when decedent died: "It was Mary Brenna n's understanding that when Robert Shea died thatNo. 2--05--0600

- 6 - the proceeds of the[] joint accounts would be hers." Consis tent with this, she asserts th at she did not file a gift tax return because the gift was not effective until decedent died. However, she does no t explicitly assert that this was the arrangement that decedent in fact intended, only that petitioner must prove that this was not

decedent's intent. Respondent also claims that a seri es of specific flaws existed in petitioner's evidence. She contends

that, if decedent did not intend to make a gift, then, after consulting with Marsik, he should have known how to make that intention clear. She also contends that Mar sik was not a credible witness because he was motivated to slant his testimony to protect his professional repu tation. Next, she contends that the fact that decedent asked Mildred Doyle to be on the accou nt is not evidence that he did not intend a gift. Finally, she asserts that
the court should not have considered her nonfiling of a gift tax return as evidence that she did not treat the accounts as a gift. ANALYSIS As we will discuss, respondent is incorrect that, to overcome the presumption that the accounts were a gift, petitioner must show that d ecedent did not intend for respondent to have the accounts when he died. Consequen tly, we conclude that petitioner's evidence was sufficient for the court to find that he overcame the Murgic presumption of a gift by clear and convincing evidence. Further, we do not consider any of the flaws to wh ich respondent points in th e evidence to be a basis for reversal. We start by analyzing the precise nature of th e presumption that a person who adds a joint tenant to his or her bank account intends a gift to that person. We conclude that clear and convincing evidence that the original tenant intended any kind of ownership other than pure joint tenancy overcomes the presumption. Next, we re view the evidence in light of the presumption, concluding that the evidence was sufficient to overcome the presumption. We then reviewNo. 2--05--0600

- 7 - respondent's assorted claims that the court gave improper weight to certain evidence and hold that none of them affects our conclusion that the court's finding that petitioner overcame the presumption was proper. Finally, we consider whether petiti oner showed by the preponderance of the evidence that the estate was entitled to the accounts. As respondent presented essentially no evidence, we conclude that he did. As the parties agree, when a sole owner of a bank a ccount adds an apparent joint tenant to the account, the law presumes that the original own er intends a gift. The basic form of interest in a joint account is a
statutorily created form of joint tenancy. See 765 ILCS 1005/2(a) (West 2002); Murgic , 31 Ill. 2d at 588-90. The relevant statute provides th at "[w]hen a deposit in any bank or trust company *** [is] made in the names of 2 or more persons payable to them when the account is opened or thereafter, the deposit or any part thereof *** may be paid to an y one of those persons." 765 ILCS 1005/2(a) (West 2002). The presumption of a gift ar ises because "an instrument creating a joint account under the statutes presumably speaks the whole truth." Murgic , 31 Ill. 2d at 591. A party challenging the presumption can overcome it only by clear and convincing evidence. Murgic , 31 Ill. 2d at 591. The supreme court has
adopted a "bursting bubble" theory of civil presumption s. Franciscan Sisters Health Care Corp. v. Dean , 95 Ill. 2d 452, 462 (1983) (concerning presump tions of undue influence in the making of a will). Therefore, once the party challenging the ownership of the bank account has presented sufficient evidence to
overcome the presumption of a gift, the presumption vanishes. In re Estate of Lewis , 193 Ill. App. 3d 316, 319 (1990) . However, the burden of proof remains on the party challenging the ownership. Murgic , 31 Ill. 2d at 591. Illinois authority treats evidence establishing that a joint account was used as a convenience account as overcoming the presumption of a gift. E.g. , Vitacco v. Eckberg , 271 Ill. App. 3d 408, 412 (1995) (suggesting that only a showing that a joint account was us ed as a convenience account will overcomeNo. 2--05--0600

- 8 - the presumption of a gi ft); In re Estate of Blom , 234 Ill. App. 3d 517, 519-20 (1992) (holding
that the party challenging the transfer must show that the account was created only as a convenience). A
convenience account is an account that is nominally a joint account, but is intended to allow the nominal joint tenant to make transactions only as specified by, and on behalf of, the account's creator. E.g. , In re Estate of Goldstein , 293 Ill. App. 3d 700, 706 (1997). The typical purpose of such an account is to allow
the nominal joint tenant to pay the true owner's bills whi le the true owner is unable to do so. These cases
reasonably assume that a person does not intend to give away the funds in the very account he or she relies on to pay bills. Respondent suggests that the use of a joint account as a convenience account leaves open the possibility
that the creator of the account intended the nominal joint tenant to have the funds at his or her death. We

understand her position to be that, to overcome the pres umption of a gift, the party challenging the presumption

must show that the creator did not intend this. We deem this to be a misreading of Murgic . The plain sense of the court's phrase in Murgic , that "an instrument creating a joint a ccount under the statutes presumably speaks the whole truth," is that the presumed gift was a present one, having as major conditions only those in the joint account agreement. Any kind of side agreement that significantly changes the ownership from the statutory joint tenancy is contrary to the presumption, because then the instrument would not be speaking the whole truth. 1 If

1 For the purposes of this case, we need be concerned only with a side agreement that significantly alters ownership. Whether a side agreement regarding an account's use, e.g. , that a new joint tenant is to use the funds only for educational expenses, would defeat the presumption is not aNo. 2--05--0600

- 9 - petitioner can show that decedent intended to retain the entire right to use the funds in the accounts during his life, even if he intended them to go to respondent at his death, that is enough to rebut the presumption.

question we now face.No. 2--05--0600

- 10 - To expand on this, if the gift of an account is to take effect only on the creator's death, its ownership is
different from that for which a joint a ccount agreement provides--the function of a joint account agreement is to immediately share ownership. If the owner of an account intends to make a present transfer of a future interest in the account, e.g. , the remainder of the account upon the owne r's death, that is also something for which an ordinary joint account agreement does not provide. 2 We note that Johnson v. La Grange State Bank , 73 Ill. 2d 342 (1978), appears to hold
that the presumption of a valid gift created by a joint account agreement survives despite proof that the gift involved conditions not listed in the agr eement. Although the decedent in Johnson required the defendant in that case to use two nominally joint bank accounts for the deceden t's benefit while she was ali ve, the court held that the account agreements "by their very ter ms indicated the existence of a valid [inter vivos ] gift." Johnson , 73 Ill. 2d at 368. However, while Illi nois courts have frequently followed Murgic , citing at least 29 times
the language that the presumption is that an account a greement speaks the whole truth, no case has followed the

2 We note that we do not find in Illinois law any clear recognition of future interests in ordinary tangible or intangible personal property. A ssuming that a future interest can even exist in property other than a trust or real property, such an interest is an oddity.No. 2--05--0600

- 11 - relevant holding in Johnson . Further, respondent has waived any argument based on Johnson by failing to cite it. See 188 Ill. 2d R. 341(e)(7). Altieri v. Estate of Snyder , 262 Ill. App. 3d 427 (1992), a case cited by respondent, does not undermine our interpretation of Murgic . In Altieri , the surviving joint tenant testified that the decedent referred to the accounts at issue as belonging to th e decedent and the surviving joint tenant. Altieri , 262 Ill. App. 3d at 432. The joint tenan t also said she believed that the decedent wanted her to have the money when the decedent died. Altieri , 262 Ill. App. 3d at 432. The trial court held that the accounts were true joint tenancies, and the reviewing court, citing Murgic , upheld the decision. Altieri , 262 Ill. App. 3d at 434. We deem the joint tenant's evidence a bout what the decedent wanted to happen to the money when she died to be beside the po int, and the critical evidence to be that the decedent spoke of the money as belonging to both of them. Neither Johnson nor Altieri alters our reading of Murgic . We hold that the relevant presumption is
that the joint account agreement alone governs the ownership of a joint account, i.e. , speaks the whole truth. Thus, clear and convincing evidence that the joint tenants had any understanding other than that in the joint account agreement can defeat the presumption that the joint account agreement speaks the whole truth. With this background, we hold that petitione r had the burden to prove by clear and convincing evidence that an agreement beyond or di fferent from the basic joint account agreement governed the ownership of the accounts. On meeti ng that first burden, he has the second burden of showing by the preponderance of the evidence that th e estate is entitled to the accounts. We point out that any evidence that decedent intended responde nt to own the accounts, but only at decedent's death, helps petitioner meet the first burden, but may weigh against him in meeting the second burden. Such evidence would tend to show that the two had not agreed to a simple joint tenancy, but might weigh for respondent's ultimate entitlement to the accounts.No. 2--05--0600

- 12 - We can now examine the trial court's findings of fact within the framework we have derived from Murgic . We review the trial court's findings of fact to en sure that they are not ag ainst the manifest weight of the evidence. Village of Lake Villa v. Stokovich , 211 Ill. 2d 106, 131 (2004). When a party must
prove a point by clear and convincing evidence, this court s hould reverse only if it is manifestly evident that the evidence presented on the point was not clear and convincing. See Nelson v. County of De Kalb , 363 Ill. App. 3d 206, 208 (2005) . We first consider whether petitioner met his burden to show the existence of a side agreement regarding the accounts so as to overcome the presumption of a gift. We deem the evidence sufficient for us to conclude that the court's finding that petitioner overcame the presumption was not against the manifest weight of the evidence. The intent of the owner of the funds at the time he or she created the account or made it joint determines whether the account is a convenience account or a true joint tenancy account. Vitacco , 271 Ill. App. 3d at 412. A decedent's statements of his or her intenti ons regarding an account are, naturally, relevant to deciding what his or her intentions were. See In re Estate of Divine , 263 Ill. App. 3d 799, 811 (1994). Marsik and John Doyle both testified that decedent discussed his intention to add a person to an account or accounts to help pay his bills. On this point, even if one disregards Marsik's testimony as biased, John Doyle's testimony remains. Within the same year as the discussions, decedent added respondent's name to the two account s, leading to a fair inference that he was carrying through on his announced intention. Reviewing courts have also used the putativ e donee's belief regarding the ownership of the account as some indication of the donor's intent. See In re Estate of Guzak , 69 Ill. App. 3d 552, 555 (1979). Respondent concedes that she believed that decedent wanted her to have the money at his death, not while he was alive. However, if one accepts her testimony that her belief was based onNo. 2--05--0600

- 13 - her understanding of the law of joint accounts, her belief may be a poor indi cator of decedent's intent. Although the intent of the funds' owner at the time he or she added a name to an account determines who owns it, evidence of later events is pertinent to the extent that it bears on the relevant intent. Blom , 234 Ill. App. 3d at 519. In other word s, courts will consider how accounts were actually used to decide how the original owners intended them to be used. Thus, that respondent used the accounts only to write checks fo r decedent's expenses, and only at the very end of decedent's life, is evidence that the accounts were convenience accounts. Petitioner's evidence draws a believable pictur e of a person preparing for his possible disability by enabling his neighbor to pay his bills for him. In summary, his wife died, he mentioned to a friend and to his lawyer that he wanted to set up convenience accounts, and then he added his longtime neighbor's name to two accounts. Further, the neighbor then treat ed those accounts as one would expect if they were convenience accounts. Although the evidence is stronger regarding th e checking account than the savings account, the evidence that the savings account was a conve nience account is nevertheless sufficient. Petitioner had direct evidence that respondent us ed the checking account exactly as one would expect with a convenience account. The evidence pe rtinent to the savings account is indirect, but satisfactory. First, decedent added respondent's na me to both accounts at th e same time, suggesting a common purpose for the two transactions. Second, the balance in the checking account was too low to cover an ordinary person's expenses mo re than briefly. Although the evidence does not exclude the possibility that decedent intended to have the checking account replenished directly from whatever income he had, it is a reasonabl e inference that decedent intended respondent to replenish the checking account from the savings account. Moreover, John Doyle and Marsik bothNo. 2--05--0600

- 14 - referred to decedent discussing putting a second name on "accounts." We therefore conclude that the court properly found that petitioner overcame the presumption of a gift by clear and convincing evidence. Respondent points to what she contends are several fatal flaws in the evidence that the court considered. We review each, concluding that none is a basis for reversing the judgment. Respondent asserts it is unreasonable to say that the evidence clearly showed that decedent intended to create convenience accounts when he easily could have made his intentions regarding the accounts clear through a new will or other written directive. We agree that decedent easily could have documented his intent in writing at the time he added respondent's name to the accounts. We further agree that this would have been the pr udent choice, as it would have, with little effort, eliminated any controversy about th e ownership of the accounts. However, the failure to take such a precaution is something this case has in common w ith essentially every case in which the parties litigate the ownership of a joint account. Further, decedent's documentation of his intent would be equally important whether he intended to make a gift to respondent or to create convenience accounts. The legal presumption of a gift would ma ke it important to document his intent to create convenience accounts. The likelihood that his heirs or legatees would assume that he intended to create convenience accounts would make it important to document his intent to make a gift. Therefore, his apparent failure to create such documentation tells us nothing about his intent. Respondent also asserts that Marsik was not a credible witness because he was motivated to lie to make up for his failure to advise deceden t on how to make his intentions clear. Although Marsik's involvement in decedent's estate planni ng is a possible source of bias, his credibility was for the trial court to decide. See In re Marriage of Smith , 347 Ill. App. 3d 395, 400 (2004). Further,No. 2--05--0600

- 15 - Marsik's testimony was similar to John Doyle's, which both bolstered it and made it less critical to the court's decision. Respondent next asserts that the court erred in considering that decede nt approached Mildred Doyle as well as respondent to be named on the acc ounts as evidence that decedent did not intend to make a gift. We disagree as a matter of common se nse. A person who needs someone to serve as a convenience signatory might naturally approach any of several persons he or she trusted to take on the job. By contrast, a person who intends to make a gift will normally have a particular recipient in mind. To the extent that the evidence shows that decedent treated respondent as a substitute for Mildred Doyle (other explanations for what happe ned are conceivable), it strongly suggests that he envisioned both as convenience signatories. Finally, respondent contends that the court erred in considering as favoring petitioner her failure, as a donee, to file a gift tax return. We doubt that the use of such a factor is generally proper, as we are familiar only with the duty of a donor to file such a return. See, e.g. , Introduction to Estate and Gift Taxes, Internal Revenue Se rvice Publication 950 (September 2004); United States Gift (and Generation-Skipping Transfer) Tax Return Instructions (2005). However, any
misunderstanding by the court here had no significance. How a putative donee treats an account for tax purposes could bear only on his or her belief about the putative donor's intent. By her positive concession that she believed that decedent intended a gift to her only on his death, respondent has removed from contention any claim that she believed that he inte nded to make a present gift to her. Since the nonfiling of a gift tax return could have served only to help establish a matter that is not in contention, any error about the meaning of the nonfiling was not significant. Having established that the court did not err in finding that petitioner overcame Murgic 's presumption of a gift, we next must decide whether petitioner met his burden to show the estate'sNo. 2--05--0600

- 16 - entitlement to the accounts by the preponderance of th e evidence. The court did not explicitly rule on this second burden, but it is unmistakable th at petitioner met it. Petitioner presented the previously mentioned evidence that tended to show that decedent intended the accounts as convenience accounts. Further, the evidence that he treated respondent and Mildred Doyle as equally proper persons to put on the accounts tended to show, for the reasons we have discussed, that he did not intend to make a gift to either of them. Finally, respondent had no evidence that the accounts should be hers other than her belief that d ecedent intended her to have them at his death-- evidence that was weakened as an indication of d ecedent's intent by respondent's statements that her belief was based on her understanding of the law of joint accounts. The preponderance of the evidence was overwhelmingly in favor of petitioner. For the reasons given, we affirm the order of the circuit court of Du Page County awarding the estate the bank accounts. Affirmed. BYRNE and KAPALA, JJ., concur.