                                       2014 IL App (1st) 132113

                                                                             FIFTH DIVISION
                                                                             JUNE 20, 2014



No. 1-13-2113


 FRANK H. KONFRST, Independent Executor of the Estate of               )   Appeal from
 Beverly J. Czerwinski, Deceased,                                      )   the Circuit Court
 ,                                                                     )   of Cook County
                                                                       )
                Plaintiff-Appellant,                                   )
                                                                       )   No. 10 P 1044
 v.                                                                    )
                                                                       )
 CYNTHIA STEHLIK,                                                      )   Honorable
                                                                       )   John J. Fleming,
                Defendant-Appellee                                     )   Judge Presiding.



       JUSTICE PALMER delivered the judgment of the court, with opinion.
       Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.

                                             OPINION


¶1     This case involves a citation proceeding brought by plaintiff Frank Konfrst, independent

executor of the estate of Beverly J. Czerwinski (the decedent), against defendant Cynthia Stehlik,

the decedent's niece, to recover the proceeds from a checking account and a money market

account. Defendant withdrew the funds from both accounts after the decedent’s death and

plaintiff brought this action to recover those funds on the ground that they belonged to the

decedent’s estate. Defendant responded that the funds belonged to her because the decedent and

defendant held the accounts in joint tenancy with the right of survivorship. Plaintiff, on the other

hand, claimed that the accounts failed to comply with the requirements of the Illinois Joint
1-13-2113


Tenancy Act (the Act) (765 ILCS 1005/2 (West 2010)) and that the decedent did not intend to

make a gift of a joint tenancy interest in either account but, instead, placed the defendant’s name

on the accounts for convenience only so that defendant could assist the decedent in paying her

expenses. A bench trial was held on the issues.

¶2     The following facts are not in dispute. On July 27, 2002, the decedent's husband passed

away. The decedent passed away on February 7, 2010. The decedent was survived by one

brother, Frank Konfrst, her brother’s daughter, Ti Brook Barnes, and one sister in California.

The decedent was married only once and had no children. Defendant is the niece of the

decedent's late husband and had been living next door to the decedent at all relevant times. From

at least 2003 through the date of her death, decedent had a checking account and a money market

account at Charter One Bank. It is undisputed that decedent was of sound mind and good health

when she created these accounts sometime in 2003. From at least 2003 through the date of her

death, all of the decedent's daily living expenses were paid through the accounts. From 2003

through the date of the decedent's death, the balance of the accounts was never less than $80,000.

From the time defendant's name was added to the accounts to the time of the decedent's death,

defendant never contributed money to either account. From the time the decedent's name was

placed on the accounts to the time the decedent was terminally ill in a hospital or hospice,

defendant never used the money in the accounts for herself and only made transactions on the

accounts as specified by, and on behalf of, decedent. During this same period, all mail for

regarding the accounts was sent to the decedent's home. Near the end of the decedent’s life,

defendant changed the address for the bank statements from the decedent’s residence, at one side

of a duplex, to her own residence on the other side of the duplex so that confidential information

would not be seen by others while the decedent was receiving in-home care. From the time



                                                  2
1-13-2113


defendant's name was placed on the accounts to the time of the decedent's death, defendant never

claimed as income any of the interest from the accounts on her federal or state taxes but, instead,

all such interest income was claimed on the decedent's federal and state taxes. From 2003 to the

date of the decedent's death, defendant was a tenant of the decedent and had been paying rent.

On April 8, 2009, decedent was fully mentally competent and aware that the accounts at Charter

One Bank contained funds in excess of $225,000. On the day after the decedent's death,

defendant withdrew $255,235.57, the then balance of the money market account. Approximately

one week later, defendant withdrew $8,836.36, the then balance on the checking account.

¶3     At trial, Barnes testified that within two months of the death of the decedent’s husband,

the decedent asked Barnes if she would be willing to be named on a Charter One Bank account

with the decedent to pay bills "in an emergency." Barnes declined for reasons such as the

absence of Charter One Bank branches in Arizona where she lived.

¶4     Defendant testified at trial that she lived next door to the decedent, in one-half of the

decedent’s duplex in Illinois, throughout her life. Defendant and her mother drove the decedent

shopping, to doctor’s appointments, and anywhere she needed to go, as the decedent did not

drive. In late 2002, at the request of the decedent, defendant drove the decedent to Charter One

Bank near their homes in Cicero, Illinois. Decedent opened a joint checking account and a joint

money market account with defendant. Defendant testified that she and the decedent signed the

necessary papers to open a joint money market account and a joint checking account. Defendant

testified that she made approximately 10 or 15 transactions on the checking account to pay the

decedent’s expenses. When defendant was shown an example signature card form at trial which

contained the joint tenancy with right of survivorship language on it for the money market

account, she testified that she signed something similar as part of the account paperwork.



                                                 3
1-13-2113


Defendant's counsel also submitted into evidence a deposit account application form with both

parties’ signatures, both parties’ contact information, and the money market account number, but

the form was not dated.

¶5     Under cross-examination, defendant testified that the decedent also opened a third

account between herself and Frank Konfrst the same day the checking and money market

accounts were created. Defendant testified that while she and the decedent were at the bank that

day, the decedent told her that this third account was "theirs," referring to the decedent's brother

and sister. The decedent also told defendant that the joint money market account and checking

account were defendant's when the decedent "croaked." Defendant testified that she felt the

account was owned jointly, but that the money was her aunt’s so long as her aunt was alive.

¶6     Henry Moheka, a representative from Charter One Bank, was called to testify by

defendant. Moheka testified that a signature card would need to be signed by both parties in

order to open a joint money market account, as was opened here. He could not speak to the

signing of this form for this particular account opened in 2003, as he joined the bank some years

after the money market account was created. Running a search through the Charter One Bank

records, he could not find records or signature cards for any accounts opened by the decedent.

Under questioning by the trial court, Moheka testified that he conducted a search that would have

directed him to the signature cards for any accounts that were currently closed and that he could

not locate any records. Moheka agreed with the trial court's statement that "somewhere there

should have been some records" "at some time" but that Moheka could not locate those records.

It is undisputed that Charter One Bank does not maintain records older six years old in its files

and that therefore any original signature cards signed by parties creating joint tenancies more

than six years ago have been destroyed.



                                                  4
1-13-2113


¶7     Plaintiff introduced into evidence a handwritten note from the decedent that stated “I

leave $50,000 to my niece Cynthia Stehlik 3833 South 58th Court Cicero, IL 60805” that was

allegedly signed by the decedent and dated April 8, 2009. Defendant authenticated the note as

being signed by and in the decedent’s handwriting.

¶8     The trial court held that defendant had proved by clear and convincing evidence that both

the money market account and the checking account complied with the Joint Tenancy Act.

Regarding whether the accounts were created for "convenience" and thus not true joint tenancies

with right of survivorship, the trial court held that plaintiff failed to prove a lack of donative

intent on the decedent’s part in regard to the money market account. Thus, the money market

account was held to be a true joint tenancy with right of survivorship and defendant was entitled

to the funds from that account. The court also held that plaintiff had proved the decedent

intended the checking account to be a convenience account and that the funds from that account

belonged to the estate. Plaintiff now appeals.

¶9     The only issue on appeal is the trial court’s ruling regarding the money market account.

The court’s ruling regarding the checking account is not in dispute.

¶10    Plaintiff contends that the trial court’s ruling as to the money market account is against

the manifest weight of the evidence. Plaintiff first argues that defendant failed to prove that the

money market account complied with the Act. Second, plaintiff argues that even if the account

complied with the Act, the account was actually a "convenience account" such that defendant is

not entitled to the funds. Defendant counters that the trial court's ruling should be upheld

because the money market account complied with the Act and because plaintiff failed to

overcome the presumption of donative intent on the part of the decedent.

¶11    A trial court’s finding that certain property belongs to a particular party will not be



                                                   5
1-13-2113


disturbed on appeal unless it is against the manifest weight of the evidence. In re Estate of

Weisberg, 62 Ill. App. 3d 578, 588 (1978). A decision is against the manifest weight of the

evidence when the opposite conclusion is clearly apparent or when findings appear to be

unreasonable, arbitrary, or not based on the evidence. In re Vanessa K., 2011 IL App (3d)

100545 ¶ 28. A finding may also be considered as against the manifest weight of the evidence if

the outcome is palpably erroneous and wholly unwarranted or clearly the result of passion or

prejudice. In re Guardianship of K.R.J., 405 Ill. App. 3d 527, 536 (2010). The manifest weight

of the evidence standard recognizes that the trial court is in the best position to observe the

conduct and demeanor of the parties and witnesses and has a degree of familiarity with the

evidence that a reviewing court does not obtain. People v. Richardson, 234 Ill. 2d 233, 251

(2009).

¶12       One of the essential characteristics of a joint tenancy is the right of survivorship or the

right of the last surviving joint tenant to take the whole. Harms v. Sprague, 105 Ill. 2d 215, 224

(1984); In re Estate of Alpert, 95 Ill. 2d 377, 381 (1983). Upon the death of a joint tenant, title

passes by operation of law to the survivor. Bonczkowski v. Kucharski, 13 Ill. 2d 443 (1958); In re

Marriage of Dudek, 201 Ill. App. 3d 995, 997 (1990). As such, the entire property goes to the

surviving tenant and cannot be inherited by another through a will or as part of the decedent’s

estate. Id.

¶13       Joint tenancies in personal property in Illinois are governed by section 2 of the Act. The

Act in relevant part states that except as to executors and trustees, and except also where "by will

or other instrument in writing expressing an intention to create a joint tenancy in personal

property with the right of survivorship," the right for owners to leave personal property in joint

tenancy with right of survivorship has been abolished. (Emphasis added.) 765 ILCS 1005/2



                                                    6
1-13-2113


(West 2010). Thus, for parties outside executors or trustees, a written instrument must be created

in order for a joint tenancy with right of survivorship to be created, or else the owners of joint

property will be deemed tenant in common. Id.

¶14    This statute does not “impair or affect the rights, privileges and immunities” of joint

tenants when:

       "[A] deposit in any bank or trust company transacting business in this State has been

       made or shall hereafter be 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 or any interest or

       dividend thereon may be paid to any one of those persons whether the other or others be

       living or not, and when an agreement permitting such payment is signed by all those

       persons at the time the account is opened or thereafter the receipt or acquittance of the

       person so paid shall be valid and sufficient discharge from all parties to the bank for any

       payments so made." (Emphasis added.) 765 ILCS 1005/2(a) (West 2010).

Therefore, Illinois bank accounts created in the name of two persons, when the funds are payable

to either party whether the others be living or not, shall be valid joint tenancies with right of

survivorship if an agreement permitting such payment is signed by the persons named on the

account at the time the account is created or if such a document is signed by the persons named

on the account thereafter to that affect. See 765 ILCS 1005/2(a) (West 2010). The joint tenants

can destroy the joint tenancy at any time during their life by receipt or written release from

obligation such that the bank shall be relieved of any duty to uphold the joint tenancy, but a

written instrument such as a will created by a joint tenant after the joint tenancy is properly made

bequeathing his or her share of the account to another does not destroy a joint tenancy validly

created. 765 ILCS 1005/2(a) (West 2010).



                                                  7
1-13-2113


¶15     Where parties dispute whether an account is properly held in joint tenancy, as in this

case, the surviving joint tenant carries the initial burden of proving by clear and convincing

evidence that the account was properly created in keeping with the Act. In re Estate of

Regelbrugge, 225 Ill. App. 3d 593, 596 (1992) (citing O’Vadka v. Rend Lake Bank, 203 Ill. App.

3d 1007, 1015 (1990)). A survivor joint tenant must prove that: (1) an interest in personal

property was created by means of a written instrument; (2) the instrument expresses the intent to

create a joint tenancy by expressly providing that the property so held is subject to the rights of

survivorship between the owners; and (3) the instrument complies with definiteness and

description requirements of that of a will, describing the subject matter, parties, and certainty of

its object. Regelbrugge, 225 Ill. App. 3d at 596; David v. Ridgely-Farmers Safe Deposit Co.,

342 Ill. App. 96, 109 (1950). Plaintiff in this case claims that defendant failed to meet her

burden because she did not produce the written agreement at trial.

¶16     Our supreme court has interpreted the Act to require joint bank account holders to sign a

written agreement permitting payment of the account to the survivor in order to create a joint

tenancy with a right of survivorship in that account. Doubler v. Doubler, 412 Ill. 597, 600-601

(1952). In Doubler, a husband wanted to put his wife name on the passbook associated with an

account held solely in his name. The husband instructed the assistant cashier at the bank to write

the name of the wife immediately after the husband’s name, and the husband also wrote above

both names " 'Payable to either of them or the survivor with full survivorship rights.' " Id. at

598-99. As the Act requires a written agreement between joint tenants be signed and expressly

state the account is to be held in joint tenancy, the court held the changing of the names by a

third party at the direction of one of those parties was insufficient to satisfy the requirements of

the Act. Id. at 601.



                                                  8
1-13-2113


¶17    However, the existence of the required written agreement can be proved by evidence

other than a signature card, and a court may look to factors outside the written instrument when

determining whether an account was held in joint tenancy. Regelbrugge, 225 Ill. App. 3d at 596;

In re Estate of Guzak, 69 Ill. App. 3d 552, 555 (1979); In re Estate of Denler, 80 Ill. App. 3d

1080, 1087 (1980). The court held in Regelbrugge that while a signed agreement is required to

create a joint tenancy in a bank account, it is appropriate for courts to consider: (1) the facts

surrounding the creation of the account; (2) the circumstances and events occurring thereafter;

(3) the facts surrounding the exercise of authority and control over the account; and (4) the

survivor’s understanding of the account. Regelbrugge, 225 Ill. App. 3d at 596-597.

¶18    In Regelbrugge, the respondent did not produce the original signature cards at trial adding

her to the joint account respectively but testified that she signed a signature card with the

decedent in 1984 and that she and the decedent kept a savings book for the account. Id. at 597.

The court found that although "the sole testimony of a donee is of questionable credibility and

should be carefully scrutinized," the respondent corroborated her testimony with other facts

surrounding the account. Id. An assistant cashier from the bank produced a photocopy from the

bank's microfilm records containing the signatures of the decedent and the respondent,

accompanied by a statement that the respondent was made a joint tenant to the account on

October 1, 1984. Her records also showed that respondent's daughter became a party to the

account in 1988. Id. at 596. The respondent also claimed that she understood that she was able

to withdraw funds from the account for her personal use, though she never did so, because both

the respondent’s and the decedent’s names were on the account. The savings books admitted into

evidence revealed the names of both the decedent and the respondent, and the respondent began

to receive statements on the account in 1984. Id. The Regelbrugge court held that this evidence



                                                  9
1-13-2113


sufficiently corroborated the respondent’s testimony and proved that a joint tenancy agreement

had been signed even though the signed agreement was not produced. Id. at 597.

¶19    Plaintiff in the present case argues that the principle set forth in Regelbrugge, that the

signed agreement can be proven by evidence other than the agreement itself, is dicta and there

not binding. We disagree. As set forth above, the principle that the signed agreement can be

proven by other evidence directly answered the issue in that case, which was the lack of a signed

written agreement, and the court applied that principle to conclude that sufficient evidence had

been presented to prove that a joint tenancy had been created. Plaintiff is also incorrect that

applying the principle in Regelbrugge would nullify the rule set forth in Doubler that a signed

written agreement is necessary to create a joint tenancy in a bank account. The principle in

Regelbrugge is not that a signed agreement is unnecessary to create a joint tenancy in a bank

account but, instead, simply that the existence of such a signed agreement can be proven with

evidence other than the agreement itself.

¶20    As in Regelbrugge, defendant in this case testified that when she and the decedent opened

the money market account at the bank, they both signed the signature cards for both the checking

and the money market accounts. Plaintiff asserts that defendant's testimony that she and the

decedent signed a signature card "similar" to the unsigned personal account agreement produced

by Charter One Bank is far from clear and convincing evidence. However, the trial court did not

rely solely upon defendant's testimony to conclude that a written agreement creating a joint

tenancy with right of survivorship had been signed by defendant and the decedent. For example,

the court considered Moheka's testimony that the personal account agreement shown to

defendant at trial is the form used for opening new accounts at Charter One Bank and that this

form contains right of survivorship language and defendant's testimony that the agreement she



                                                 10
1-13-2113


and the decedent signed was similar to this form. Though the records no longer existed when the

bank representative did his search, defendant testified that she understood she was able to

withdraw funds from the account for her personal use because both defendant's and the

decedent’s names were on the account. The bank statements for the money market account listed

the names of both the decedent and defendant, and defendant was able to have the statements for

the money market account sent to her address when the decedent began requiring in-home care.

Defendant also introduced a deposit account application for the money market account that the

decedent and defendant filled out as “co-applicants” with both of their signatures. Although the

form is not dated and does not contain any language regarding the type of ownership in the

account, it could be considered as corroborative of the decedent’s intent to open a joint account.

Moheka, the Charter One Bank representative, testified that the fact that both the names of the

decedent and defendant were on the bank statements indicates that it was a joint account with

right of survivorship and that it could not have been any other type of account.

¶21    The trial court also relied on defendant's testimony that the decedent opened a third

account at the bank and told her that this account was "theirs" and that the checking and money

market accounts were hers. The defendant understood this to mean that the money market and

checking account were going to be left to her and that the third account was going to be left to

the other joint account holders, the decedent's brother and sister. Finally, the court considered

defendant's testimony that the decedent told her that the money market and checking accounts

were defendant's when the decedent "croaked."

¶22    The trial court heard all of the above evidence and found that defendant had met her

burden and established by clear and convincing evidence that the money market account was

held by defendant and the decedent in joint tenancy with the right of survivorship. After



                                                11
1-13-2113


reviewing the evidence, we cannot say that the trial court’s determination was against the

manifest weight of the evidence.

¶23    Once an account is deemed to conform to the Act, this compliance with statutory

requirements “creates a presumption that those furnishing consideration for the creation of such

interests intend to make a gift to those who furnish less than their share or no consideration."

(Emphasis added.) Estate of Lewis, 193 Ill. App. 3d 316, 319 (1990) (citing Murgic v. Granite

City Trust & Savings Bank., 31 Ill. 2d 587, 589 (1964)). The burden then shifts to the party

questioning the gift to prove by clear and convincing evidence that a gift was not intended.

Lewis, 193 Ill. App. 3d at 319 (citing Murgic, 31 Ill. 2d at 589). The burden switches to the party

challenging the presumption of a gift because “[t]he legislative policy to treat the joint account as

a useful technique for transferring intangibles dictates that the estate or other person claiming

against the survivor should have the burden of disproving intent on the part of the decedent.”

Murgic, 31 Ill. 2d at 590-91. Once the party challenging the ownership of the bank account has

presented sufficient evidence to overcome the presumption of a gift, the presumption vanishes

but the burden of proof remains on the party challenging the ownership. Lewis, 193 Ill. App. 3d

at 319 (citing Murgic, 31 Ill. 2d at 591). The determination as to the sufficiency of the rebuttal

evidence is a determination to be made by the trial court. Id. at 320.

¶24    A party can use evidence establishing that a joint account was used as a convenience

account to overcome the presumption of a gift. See, e.g., Vitacco v. Eckberg, 271 Ill. App. 3d

408, 412 (1995) (only a clear and convincing showing that a joint account was used as a

convenience account will overcome the presumption of a gift); In re Estate of Blom, 234 Ill.

App. 3d 517, 519-20 (1992) (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



                                                 12
1-13-2113


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." In re Estate of Shea, 364 Ill. App. 3d 963, 969

(2006). 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. Id. at 969. A court can determine an

account is for convenience when “the creator did not intend the other tenant to have any interest,

present or future, but had some other intent in creating the account." In re Estate of Harms, 236

Ill. App. 3d 630, 634 (1992). An example of a convenience account is “where the creator only

wanted the other tenant to write checks at the creator’s discretion, and not to have any share in

the account during the creator’s life or on the creator’s death.” Id.; Vitacco, 271 Ill. App. 3d at

412.

¶25    Plaintiff's second contention on appeal is that the trial court's determination that plaintiff

failed to rebut the presumption of a gift was against the manifest weight of the evidence.

Plaintiff claims that even if the money market account complied with the Act, the presumption of

a gift was rebutted because the decedent intended to retain use of the funds during her lifetime,

even if she intended them to go the defendant upon the decedent’s death. As evidence that the

decedent only intended to grant defendant a future interest in the money market account, plaintiff

points to defendant's testimony that the decedent told defendant the money was hers when she

"croaked" and to defendant's testimony that she felt the money in the account was her aunt's as

long as her aunt was alive. Plaintiff also claims that the decedent had the defendant placed on

the account so that the defendant could pay the decedent’s bills when the decedent was unable to

do so and therefore the money market account was a “convenience account” and not a true joint

account with the right of survivorship.

¶26    In making this argument, plaintiff relies upon In re Estate of Shea, 364 Ill. App. 3d 963,



                                                 13
1-13-2113


964 (2006), in which the Second District of this appellate court held that a party rebuts the

presumption of donative intent by showing with clear and convincing evidence that the account

holder did not intend to make a present gift of the funds in an account. In Shea, a neighbor of a

decedent appealed a ruling that the two bank accounts on which she was a joint tenant with

decedent belonged to the decedent’s estate. Id. The court upheld the trial court’s finding that the

account was for convenience only based on the facts that the decedent had conversations with

others that he intended the accounts to be convenience accounts and the neighbor chosen was not

his first choice as joint tenant, that the neighbor never contributed to either account or used the

money in the accounts for herself while the decedent was alive but instead only used the

checking account to cover the decedent’s expenses near his death, and that the neighbor could

not provide any evidence that the decedent intended to make the funds as a gift.1 Id. at 967.

¶27     In reaching this conclusion, the court in Shea considered the respondent's contention 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 upon his or her death. Id. at 969.

The court found this argument to be a "misreading of Murgic." The court acknowledged the

principle that 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 because " 'an instrument creating a joint

account under the statutes presumably speaks the whole truth.' " Id. (quoting Murgic, 31 Ill. 2d

at 591). The court then interpreted this phrase as follows:

                 "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


        1 The decedent in Shea had approached another person to be put on the accounts, but that person was in too
poor health to take on the responsibility. He also consulted his lawyer.

                                                       14
1-13-2113


       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. If 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.

               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." (Emphasis added.) Shea, 364 Ill.

       App. 3d at 970.

¶28    The court then noted 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." Shea, 364

Ill. App. 3d at 970. The court observed that "[a]lthough 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.' " Id. (quoting Johnson, 73 Ill. 2d at 368). The court also

reviewed Altieri v. Estate of Snyder, 262 Ill. App. 3d 427, 432 (1992), in which the court found

that certain accounts were true joint tenancies based upon evidence that the surviving joint

testified that the decedent referred to the accounts at as belonging to the decedent and the

surviving joint tenant and that the joint tenant also said she believed that the decedent wanted her



                                                 15
1-13-2113


to have the money when the decedent died. Shea, 364 Ill. App. 3d at 971. The court ultimately

found that neither Johnson nor Alteieri altered its reading of Murgic and held 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." (Emphasis omitted.) Id.

¶29    We find that the Shea court's reading and extension of Murgic is unwarranted and

unpersuasive. This overly broad interpretation of the simple phrase "speaks for itself" would in

effect overrule the decision in Johnson without our supreme court having done so itself. Instead,

we find persuasive and adhere to the rule set forth in Harms, 236 Ill. App. 3d at 634-35. In that

case, the Fourth District of this appellate court stated that a convenience account "is an account,

apparently held in some form of joint tenancy, where in fact the creator did not intend the other

tenant to have any interest, present or future, but had some other intent in creating the account."

Id. at 634. On the other hand, the court described the essence of a joint account in the following

manner:

               "A joint account is often used as a form of testamentary disposition, a will

       substitute, where the creator does not intend the other tenant to have any present interest,

       but does intend the other tenant to have the account on the creator's death. Such an

       account is a true joint tenancy account with the right of survivorship, whether or not the

       other tenant claimed any interest in the account during the creator's life. A joint account

       created as an alternate form of testamentary disposition is not a convenience account, at

       least not as far as the right of survivorship is concerned. It is illogical that an individual



                                                  16
1-13-2113


       would place all of her substantial assets in joint accounts if she just wanted someone to

       relieve her of the day-to-day burden of writing checks." Id. at 634-35.

¶30    As the trial court observed in this case, the rule set forth in Harms has been cited to and

relied upon by the First District and Second District of this appellate court. See In re Estate of

Flecken, 266 Ill. App. 3d 1087, 1093-94 (1994); In re Estate of Teall, 329 Ill. App. 3d 83, 87

(2002). This rule is based on the premise that "a donor's intent to create a survivorship

arrangement ' "is the essence of joint tenancy." ' " Flecken, 266 Ill. App. 3d at 1094 (quoting

Frey v. Wubbena, 26 Ill. 2d 62, 72 (1962), (quoting In re Estate of Mueth, 33 Ill. App. 2d 449,

451 (1962)). Our supreme court has relied upon this principle in rejecting an argument that an

intention to use a joint tenancy as a testamentary disposition evidences a lack of donative intent.

See Frey, 26 Ill. 2d at 71-72.

¶31    Applying these principles, the defendant in this case need not have claimed any interest

in the money market account while the decedent was alive in order to claim an interest as a

surviving joint tenant. See Harms, 236 Ill. App. 3d at 634-35; Flecken, 266 Ill. App. 3d at 1094.

Likewise, the presumption of a gift is not rebutted even if the decedent did not intend defendant

to have any present interest in the account and only intended the defendant to have the account

upon the decedent’s death. The evidence shows that when the decedent was of sound mind and

good health, she told defendant that the money market account would be hers when the decedent

"croaked," evidencing the decedent's intent to give the account to defendant upon her death. The

decedent also opened a third account at the bank on the same day she opened the checking

account and money market account and named her brother and sister as joint tenants on the

account. Defendant testified that the decedent told her this third account would be "theirs,"

meaning the decedent's brother and sister. This indicates the decedent was setting up the



                                                 17
1-13-2113


accounts as joint accounts with the intention of creating a testamentary disposition. This intent

to create a right of survivorship in the other tenant is the essence of a joint tenancy and such

intention to create future interests in these account does not overcome the presumption of a gift.

See Frey, 26 Ill. 2d at 72; Harms, 236 Ill. App. 3d at 634. Thus, the portions of defendant's

testimony relied upon by plaintiff does not establish that the trial court's determination that

plaintiff had failed to rebut the presumption of a gift was against the manifest weight of the

evidence.

¶32    Plaintiff also draws similarities to Shea based on the fact that she was the decedent’s

neighbor, citing Regelbrugge. The Regelbrugge court held, however, that evidence that the

surviving joint tenant lived in close proximity and used money for decedent’s expenses but not

for her own personal use is not enough to overcome the presumption of a gift. See Regelbrugge,

225 Ill. App. 3d at 597.

¶33    Plaintiff claims that the trial court’s ruling was based on the mistaken belief that the

money market account was not used to pay the decedent’s bills when in fact the evidence shows

that the money market account was also used to pay the decedent’s bills. The “evidence”

plaintiff refers to is that defendant admitted a statement contained in plaintiff’s amended petition

for a citation to recover assets that all of the decedent’s living expenses were paid through “the

accounts.” However, the trial court could have reasonably concluded that such a broad statement

did not establish which accounts were used to pay the decedent’s expenses or that this statement

established that the decedent’s expenses were paid out of the money market account. Defendant

testified at trial that from the time the accounts were opened until near the decedent’s death, the

decedent conducted most of her banking business and that only when she became ill did the

decedent ask for defendant’s help. Defendant also testified that she made approximately 10 to 15



                                                 18
1-13-2113


transactions on the checking account on the decedent’s behalf. There was no other evidence

presented at trial indicating which, if any, of the decedent’s living expenses were paid from

either account. Plaintiff similarly claims that the money market account may have been created

to replenish the checking account. However, this claim is pure conjecture as no evidence was

presented that the money market account was ever used for such a purpose. Even if the money

market account had been used to replenish the checking account, this would not necessarily

establish that the decent did not also intend the funds in the money market account to go to

defendant upon her death.

¶34    Plaintiff lastly asserts that a note signed by the decedent in 2009 indicates that she

intended to leave defendant $50,000 but not the $80,000 in the money market account. See In re

Estate of Blom, 234 Ill. App. 3d 517, 519 (1992) (usually the intent of the funds’ owner at the

time he or she added a name to the account determines who owns it, but evidence of later events

may be considered as bearing on the issue of intent).

¶35    At trial, defendant authenticated a note as being signed by and in the decedent’s

handwriting stating "I leave $50,000 to my niece Cynthia Stehlik 3833 South 58th Court Cicero,

IL 60805," dated April 8, 2009. This note, however, was handwritten, was not witnessed or

notarized, and therefore is not a valid will. See 755 ILCS 5/4-3 (West 2010) (“Every will shall

be in writing, signed by the testator or by some person in his presence and by his direction and

attested in the presence of the testator by 2 or more credible witnesses.”). Even if it were a will,

the nature of a joint tenancy is that title passes by operation of law to the survivor and a joint

tenant cannot destroy a joint tenancy by later creation of a will. Bonczkowski, 13 Ill. 2d 443;

Dudek, 201 Ill. App. 3d at 997. Plaintiff cites no authority that a handwritten note can destroy a

validly created joint tenancy. Moreover, the note was written six years after the creation of the



                                                  19
1-13-2113


money market account and did not mention the Charter One Bank accounts or indicate from

which source of funds the $50,000 was to be drawn. It is possible that the decedent simply

intended to make a separate gift of $50,000 to the defendant from her estate in addition to the

money market account or that the decedent intended to make a gift to the defendant during her

lifetime through this note. The trial court considered the note and the other evidence and found

that plaintiff had failed to rebut the presumption of a gift. Considering all of the evidence, we

cannot say that the court’s determination was against the manifest weight of the evidence.

¶36    For the reasons stated, the judgment of the circuit court of Cook County is affirmed.

¶37    Affirmed.




                                                 20
