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 holder 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 showing by clear and convincing evidence that the 

account holder did not intend a present gift. We therefore conclude that 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 entitlement to that account by the preponderance of the 

evidence. Because petitioner presented substantial evidence that decedent intended the accounts to 
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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 exhibits 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 considered 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 extensively in their appellate briefs. Obviously, the parties 

have waived any possible claim of error based on the court's use of the exhibits. 188 Ill. 2d R. 

341(e)(7). However, we note to the 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 joint tenant of two bank accounts, one checking and one 

savings. He alleged that she was in a fiduciary relationship with decedent, as trustee 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 convenience accounts and had never 

intended respondent to have the funds on his death. 
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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 that 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 effect 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 she could have. Respondent told petitioner that the 

savings account contained approximately $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 issued 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 told Mildred that he needed to have someone "to be put on the accounts" 

to pay his bills if he could not, but 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 about estate planning and related matters. Decedent 

wanted to place his real property in a revocable trust, and Marsik drafted the relevant document. That 

document is a part of the collection of exhibits. It names decedent as the original trustee and respondent as 

successor trustee. Decedent also expressed concern to Marsik that he would have no one to pay his bills if he 
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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. Respondent agreed that decedent had named her the successor 

trustee of his revocable trust. She had signed a signature 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 stipulated that after decedent died, she closed the accounts 

and transferred the money into an account she held jointly 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 checks 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 failure to list the accounts as a gift on a tax return 

showed that she also saw it as a convenience. Finally, he argued that, because 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 that decedent intended to create 

convenience accounts. These included that after his wife died, decedent put all his assets except the two bank 

accounts into a revocable trust and that respondent was not decedent's first choice as joint tenant--he first 

approached Mildred Doyle to serve. The court listed six further bases for its finding: (1) respondent never 
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contributed to either account; (2) she 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 any evidence that decedent intended the funds as a gift; 

(5) she did not file a gift tax return or pay a gift tax 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 other things, that the burden was on petitioner to 

show not only that decedent intended to use the accounts as convenience accounts while he was alive, but also 

that he intended his estate, and not respondent, to have them 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 wrote 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 *** because there was no completed gift. If all the money 

had been used for him during his lifetime, there never would have been a gift to her, which is very 

possible, and that she did not have exclusive control of it; she did not have, until he died ***." 

Respondent noted that petitioner had never produced evidence that decedent had said that he wanted the money in 

his estate when he died. Further, petitioner did not produce anything decedent wrote showing such intent. 

The court denied the motion to reconsider and granted 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 Brennan's understanding that when Robert Shea died that 
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the proceeds of the[] joint accounts would be hers." Consistent with this, she asserts that she did not file a gift 

tax return because the gift was not effective until decedent died. However, she does not 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 series 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 Marsik was not a credible witness because he was motivated 

to slant his testimony to protect his professional reputation. Next, she contends that the fact that decedent 

asked Mildred Doyle to be on the account 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 decedent did not intend for respondent to have the 

accounts when he died. Consequently, 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 which respondent points in the evidence to be a basis 

for reversal. 

We start by analyzing the precise nature of the 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 review the evidence in light of the presumption, 

concluding that the evidence was sufficient to overcome the presumption. We then review 
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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 petitioner 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 account adds an apparent joint tenant to the account, 

the law presumes that the original owner 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 that "[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 any one of those persons." 765 ILCS 1005/2(a) (West 

2002). The presumption of a gift arises 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 presumptions. Franciscan Sisters Health Care Corp. v. Dean, 

95 Ill. 2d 452, 462 (1983) (concerning presumptions 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 used as a convenience account will overcome 
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the presumption of a gift); 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 while 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 presumption 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 account 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 a 
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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. 
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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 account 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 owner'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 agreement. Although the decedent in Johnson required the defendant in that 

case to use two nominally joint bank accounts for the decedent's benefit while she was alive, the court held that 

the account agreements "by their very terms indicated the existence of a valid [inter vivos] gift." Johnson, 73 

Ill. 2d at 368. However, while Illinois courts have frequently followed Murgic, citing at least 29 times 

the language that the presumption is that an account agreement 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. Assuming that a future interest can even exist in 

property other than a trust or real property, such an interest is an oddity. 
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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 the decedent and the surviving joint tenant. Altieri, 262 Ill. 

App. 3d at 432. The joint tenant 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 about what the decedent wanted to happen to the 

money when she died to be beside the point, 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 petitioner had the burden to prove by clear and 

convincing evidence that an agreement beyond or different from the basic joint account agreement 

governed the ownership of the accounts. On meeting that first burden, he has the second burden of 

showing by the preponderance of the evidence that the estate is entitled to the accounts. We point 

out that any evidence that decedent intended respondent 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. 
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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 ensure that they are not against 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 should 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 intentions 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 accounts, leading to a fair inference that he was 

carrying through on his announced intention. 

Reviewing courts have also used the putative 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 on 
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her understanding of the law of joint accounts, her belief may be a poor indicator 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 words, 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 for 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 picture 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 treated those accounts as one 

would expect if they were convenience accounts. 

Although the evidence is stronger regarding the checking account than the savings account, 

the evidence that the savings account was a convenience account is nevertheless sufficient. 

Petitioner had direct evidence that respondent used the checking account exactly as one would 

expect with a convenience account. The evidence pertinent to the savings account is indirect, but 

satisfactory. First, decedent added respondent's name to both accounts at the 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 more 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 reasonable inference that decedent intended respondent to 

replenish the checking account from the savings account. Moreover, John Doyle and Marsik both 
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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 prudent choice, as it would have, with little effort, 

eliminated any controversy about the ownership of the accounts. However, the failure to take such a 

precaution is something this case has in common with 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 make 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 decedent on how to make his intentions clear. Although 

Marsik's involvement in decedent's estate planning 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, 
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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 decedent approached Mildred 

Doyle as well as respondent to be named on the accounts as evidence that decedent did not intend to 

make a gift. We disagree as a matter of common sense. 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 happened 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 Service 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 intended 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's 
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entitlement to the accounts by the preponderance of the evidence. The court did not explicitly rule 

on this second burden, but it is unmistakable that 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 decedent intended her to have them at his death--

evidence that was weakened as an indication of decedent'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.