{ "id": 5295132, "name": "NANCY WHITE, as Ex'r of the Estate of Juel Clark, Deceased, Plaintiff-Appellee, v. TOMMIE RAINES, Defendant-Appellant", "name_abbreviation": "White v. Raines", "decision_date": "1991-06-20", "docket_number": "No. 5\u201490\u20140173", "first_page": "49", "last_page": "60", "citations": [ { "type": "official", "cite": "215 Ill. App. 3d 49" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "524 N.E.2d 939", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3584649 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0505-01" ] }, { "cite": "558 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "200 Ill. App. 3d 309", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462480 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/200/0309-01" ] }, { "cite": "505 N.E.2d 7", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 890", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574321 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0890-01" ] }, { "cite": "525 N.E.2d 203", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 753", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3585038 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0753-01" ] } ], "analysis": { "cardinality": 970, "char_count": 28588, "ocr_confidence": 0.797, "pagerank": { "raw": 2.2572763452415083e-07, "percentile": 0.7822488878695244 }, "sha256": "17b5686f51cc5c98384fb41fbcfec59634a5f54e4fe119a13d80357b8c88c33d", "simhash": "1:e34ef6b657de4791", "word_count": 4938 }, "last_updated": "2023-07-14T22:48:50.210219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NANCY WHITE, as Ex\u2019r of the Estate of Juel Clark, Deceased, Plaintiff-Appellee, v. TOMMIE RAINES, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LEWIS\ndelivered the opinion of the court:\nThe plaintiff, Nancy White, as executor of the estate of Juel Clark, deceased, brought an action in two counts to recover assets from the defendant, Tommie Raines. She alleged in the first count that the defendant had exerted undue influence upon the decedent and in the second count that the decedent had lacked the mental capacity to conduct his affairs. Following a bench trial, judgment was entered in favor of the plaintiff and against the defendant as to count I, and the defendant was ordered to convey and transfer the property and accounts in question to the plaintiff. With respect to count II, the trial court expressly found that the plaintiff did not establish by a preponderance of the evidence that the decedent lacked mental capacity on the specific dates of the transfers of assets in question. Upon the trial court\u2019s denial of his post-trial motion, the defendant perfected this appeal, presenting two issues for our review: (1) \u201cWas it error for the Trial Court to fail to apply the law to the facts, fail to consider all the evidence and make findings not supported by the evidence?\u201d and (2) whether the trial court improperly applied the Dead Man\u2019s Act (Ill. Rev. Stat. 1989, ch. 110, par. 8 \u2014 201) in ruling that the testimony of the defendant\u2019s wife was incompetent.\nThe decedent died testate on September 24, 1988, at the age of 88. His wife, Emma Clark, had died in August of 1987. The couple had had no children. On March 27, 1981, Juel Clark executed a will in which he devised and bequeathed all of his property to his wife if she should survive him and, if she should not, to 11 relatives, including his own siblings, his wife\u2019s siblings, and a number of his and Emma\u2019s nieces and nephews. According to the terms of Juel Clark\u2019s will, the defendant, who is Emma Clark\u2019s nephew, was to receive 10% of the decedent\u2019s property after the payment of debts and funeral expenses.\nFollowing Emma Clark\u2019s death, Juel Clark became despondent and his physical health deteriorated. He suffered from prostate problems and congestive heart failure. On a number of occasions beginning in November of 1987 until his death, he was required to be hospitalized, including the period from February 17, 1988, until March 9, 1988; from September 3, 1988, until September 8, 1988; and from September 23, 1988, until his death the following day. The defendant testified, in response to questioning by the trial court, that in March of 1988 he knew the contents of Juel Clark\u2019s will and that he knew then that he had not received the decedent\u2019s \u201cHill Farm,\u201d which he had hoped to receive. Earlier he had testified, concerning his knowledge of the contents of the will: \u201cWhen we went to Steeleville in January I think I looked at it.\u201d He admitted in this earlier testimony that he had seen the will well before the decedent\u2019s hospitalization extending from February into March and well before the decedent\u2019s execution of both a power of attorney and a deed to Hill Farm in March of 1988. Asked by the trial court when he had become aware of the decedent\u2019s savings account and certificates of deposit, the defendant answered, \u201c[P]robably March too.\u201d Cheryl Kimmel, the defendant\u2019s sister, testified that \u201cprobably\u201d after the decedent\u2019s hospitalization in December of 1987 the defendant had told her that he knew the contents of the decedent\u2019s will.\nIn approximately January of 1988, the decedent executed a deed conveying Hill Farm, consisting of approximately 125 acres, to the defendant, who testified that he subsequently destroyed the deed:\n\u201cWell, my uncle got upset after he had signed this and said everybody had got what they wanted and just take him home and let him die. So I got the deed out and I tore it up and I told him I didn\u2019t want his property, that I would rather for him to live.\u201d\nOn March 3, 1988, while in the hospital, the decedent executed a power of attorney granting to the defendant this power. Having obtained the document from the decedent\u2019s attorney, Donald Elmore, the defendant brought it to the decedent\u2019s hospital room where it was executed in the defendant\u2019s presence. Prior to this date the decedent had conveyed some of his real property to Lawrence White. Cheryl Kimmel testified that after the power of attorney had been executed, the defendant told her that it \u201cwas to take care of Uncle\u2019s business, to pay bills and to make sure there was no more land transactions.\u201d\nAfter the decedent was discharged from the hospital on March 9, 1988, he came to live with the defendant and his family in Steeleville, Illinois. Upon questioning by the trial court, the defendant indicated that it was fair to say that from March to September of 1988, except for a period of five or six weeks around June when the defendant\u2019s son was in the hospital following an injury, defendant and his wife had essentially constant contact with the decedent, who no longer drove an automobile. On March 10, 1988, the defendant had his name \u201cput on\u201d the decedent\u2019s checking account. On March 19, 1988, the decedent executed a warranty deed conveying the Hill Farm to the defendant, who did not record the deed until September 27, 1988, three days after the decedent\u2019s death. The decedent signed the deed at the home of and in the presence of the defendant, who had asked a notary public whom he knew to come to his house for the purpose of notarizing the deed. The defendant had asked the decedent\u2019s attorney to prepare the deed and had obtained the deed from the attorney\u2019s office. Upon questioning by the trial court, the defendant indicated that he was the person who had instructed Mr. Elmore to prepare a deed to Hill Farm again and that the decedent had not communicated with Mr. Elmore concerning this deed, executed on March 19, 1988. The defendant paid no consideration for the deed.\nThe decedent resided with the defendant and his family until his death. At the end of the school year they lived together in the decedent\u2019s home in Sand Ridge, Illinois. On May 16, 1988, the decedent, a retired railroad employee, executed a \u201cDesignation and Change of Beneficiary Form\u201d naming the defendant as the beneficiary of his employment-related insurance policy. The defendant had invited to his house a coemployee, David Jones, who witnessed the decedent\u2019s signing of this form. The defendant never sent the form or apparently made any claim with respect to these benefits, which have a value, according to the defendant, of $2,000.\nOn September 14, 1988, the defendant and the decedent engaged in a number of transactions that, together with the conveyance to defendant of Hill Farm in March of 1988, put the defendant in possession of virtually all of the decedent\u2019s assets of any value. The defendant testified twice concerning these transactions, first as an adverse witness called by the estate pursuant to section 2 \u2014 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1102) and second as a witness testifying in his own behalf.\nAs an adverse witness the defendant testified that on September 14, 1988, he and his wife had taken the decedent to the doctor and then proceeded to the office of the decedent\u2019s attorney in Murphysboro, Illinois. The defendant had \u201ccalled ahead and had Mr. Elmore to fix up a deed for [the decedent\u2019s] house.\u201d The defendant testified that he \u201cwas told to\u201d make the call. The defendant had instructed Mr. Elmore as to what he wanted done and, upon arriving at Mr. Elmore\u2019s office, went inside to pick up the deed while the decedent waited outside with defendant\u2019s wife in a pickup truck. The defendant indicated that two trips to Mr. Elmore\u2019s office were made that day because Mr. Elmore was not there the first time they went to his office. Apparently, upon returning to Mr. Elmore\u2019s office the defendant told personnel there that the decedent was too tired to come inside. For that reason and because \u201cthere was no parking,\u201d the notary public came outside to the pickup truck, where the decedent, in the presence of the defendant and his wife, signed the warranty deed conveying his home to the defendant. The decedent did not speak with or see Mr. Elmore that day. The defendant did not record the deed until after the decedent\u2019s death. To the knowledge of the defendant, the real estate so conveyed on September 14, 1988, comprised the remainder of the real estate owned by the decedent. Upon questioning by the trial court, the defendant indicated that although the deed to Hill Farm had originally been prepared in approximately December of 1987, the deed to this property had not been prepared at that time.\nDefendant testified, upon further examination by the estate, that from the attorney\u2019s office he, his wife, and the decedent proceeded to the City National Bank in Murphysboro before returning to Mr. Elmore\u2019s office. With the decedent\u2019s three certificates of deposit and apparently his passbook in his pockets, the defendant, together with his wife, seems to have assisted the decedent in walking into the bank. The defendant \u201c|jp]robably\u201d \u201cpulled the C.D.\u2019s and passbook out and put it [sic] on the counter.\u201d The defendant, not the decedent, explained to the teller what needed to be done. Asked, \u201cFact of the matter was he [decedent] was hunched over the counter, leaning on the counter to balance himself, wasn\u2019t he?\u201d the defendant answered, \u201cCould have been.\u201d Thereafter, the decedent and defendant\u2019s wife sat in the hall while the defendant discussed the transactions with bank personnel. The decedent signed the documents while seated. As a consequence of these transactions, the defendant\u2019s name was added to the decedent\u2019s certificates of deposit and savings account as an owner in joint tenancy. The value of the savings account at the time was, in the words of the defendant, \u201cFifteen, sixteen thousand. I\u2019m not sure.\u201d The three certificates of deposit, in the amounts of $30,000, $19,000, and $17,000, had a combined value of $66,000. The defendant told no one about these transactions until after the decedent\u2019s funeral.\nThe plaintiff\u2019s exhibit No. 6 consists of photographic copies of the three certificates of deposit. We note that, according to this exhibit, on April 14, 1988, City National Bank issued a certificate of deposit in the amount of $30,000 in the name of \u201cJuel Clark or, Tommie D. Raines,\u201d which certificate replaced a prior one bearing the name of the decedent or Emma Clark and to which the name of the defendant had been added. On that same date, April 14, 1988, another certificate of deposit in the amount of $30,000, replacing the one in the name of \u201cJuel Clark or Tommie D [sic] Raines,\u201d was issued in the name of \u201cTommie D. Raines or Harriet L. Raines.\u201d Harriet Raines is the name of the defendant\u2019s wife. Similarly, City National Bank issued a certificate of deposit in the amount of $19,000 on May 1, 1988, in the name of \u201cJuel Clark or Tommie D. Raines,\u201d which certificate replaced an earlier one in the same amount bearing the names of the decedent and Emma Clark and to which the name of the defendant had been added. On that date, May 1, 1988, another certificate of deposit in the amount of $19,000, replacing the one in the name of \u201cJuel Clark or Tommie D. Raines,\u201d was issued to the bank in the name of \u201cTommie D. Raines or Harriet Raines.\u201d Similarly, City National Bank issued a certificate of deposit in the amount of $17,000 on May 2, 1988, in the name of \u201cJuel Clark or Tommie D. Raines,\u201d which certificate replaced an earlier one in the same amount bearing the names of the decedent and Emma Clark and to which the name of the defendant had been added. On that date, May 2, 1988, another certificate of deposit in the amount of $17,000, replacing the one in the name of \u201cJuel Clark or Tommie D. Raines,\u201d was issued by the bank in the name of \u201cTommie D. Raines or Harriet L. Raines.\u201d Testifying in his own behalf, the defendant indicated that he had used the power of attorney only to write checks \u201cto pay doctor bills\u201d and that he had not transferred any of the decedent\u2019s property, real or personal, using his own name with or without a power of attorney: \u201cJust the checks that we talked about this morning to pay doctor bills. That\u2019s all we ever done.\u201d Asked, \u201cWith a power of attorney did you ever transfer anything else or do anything else, gain some kind of right to control or use his property?\u201d the defendant responded, \u201cAll we done was wrote the checks to pay the bills. I didn\u2019t transfer no property or nothing to my name. No, sir.\u201d\nTestifying in his own behalf, the defendant stated that the decedent had not told him that he intended to give him the \u201cother farm\u201d and the money in the bank \u201cuntil the day we done it,\u201d September 14, 1988. The defendant described how he learned of the decedent\u2019s intentions on that day:\n\u201cWe had a doctor\u2019s appointment that day. We took him to the doctor at Carbondale and on the way back through Murphysboro he said he wanted to stop at the bank and stop at Mr. Elmore\u2019s. So on the way back we stopped at Mr. Elmore\u2019s and he wasn\u2019t there, so from there we went to the City Bank. We went inside and done the transactions of the bank account, whatever.\u201d\nThe defendant testified that the decedent had not said to him on a previous occasion that he might give him this real property or money. Later, when the trial court inquired of the defendant, \u201c[W]as it you that initiated the contact with Mr. Elmore regarding the deed to the homestead property?\u201d he answered, \u201cProbably so. I think.\u201d Asked by the trial court, \u201cSo Mr. Elmore got the instructions on September 14th deed from you, is that correct?\u201d the defendant responded, \u201cI guess so.\u201d Questioned by the trial court whether he knew when he had initiated the contact with Mr. Elmore concerning the deed executed on September 14, 1988, the defendant answered, \u201cNot exactly.\u201d In response to further questioning by the trial court, the defendant indicated that he had done so before the decedent entered the hospital on September 3, 1988. Upon still further questioning by the trial court, the defendant testified that when they left on the morning of September 14, 1988, to go to the doctor\u2019s office, he did not know they were going to go to Mr. Elmore\u2019s office and to the bank.\nCheryl Kimmel, a beneficiary of 15% of the decedent\u2019s estate under his will, testified that during the hospitalization of the decedent in November 1987, the defendant stated in a discussion at which the witness and the decedent\u2019s doctor were present that he would never let the decedent go to a nursing home \u201c[b]ecause he said they\u2019d take everything he got,\u201d that is, \u201cEverything that Uncle had\u201d by way of property. During this hospitalization the defendant advised the witness that the decedent was not physically or mentally capable of handling his business affairs any longer, that the defendant felt that a power of attorney was necessary \u201c[bjecause Uncle Juel had made some land transactions,\u201d and that the defendant should be the grantee of the decedent\u2019s power of attorney \u201c[because [defendant] said everybody was taking advantage of [decedent] and taking him for everything he had.\u201d After the decedent was discharged from the hospital in November of 1987, the defendant took care of him at his home in Steeleville.\nCheryl Kimmel testified that she knew that the decedent had a will and had seen it. She stated that during a visit in July of 1988 the defendant told her, \u201cwe should get Uncle to sign everything over to us,\u201d that is, to defendant and the witness, \u201cso no one else could come in, that his side didn\u2019t deserve anything,\u201d namely, the decedent\u2019s nieces and nephews. She testified that she then told the defendant \u201cUncle had a will, to leave it just like it was and everybody would get a share.\u201d The defendant responded, \u201cWe\u2019ll see about that.\u201d The day after the decedent\u2019s funeral the defendant told her that decedent had signed everything over to him prior to his death. When the witness asked why decedent had done so, the defendant answered that he \u201cdeserved it.\u201d The defendant said, \u201cnobody was going to get anything,\u201d and he told her that if she had played her cards right she would have been the one getting it all, not him. The witness testified that in approximately March of 1988 the defendant told her \u201cthat he had finally got Uncle to agree to sign the 130[-]acre farm over to him.\u201d The witness further testified that later, in April of 1988, the defendant told her concerning the conveyance of the farm that \u201cUncle Juel had went into a rage and told him he didn\u2019t want him to have it and so Tommie told me he tore the deed up.\u201d \u201cOver the years,\u201d the witness said, the defendant had expressed the wish several times to have the Hill Farm \u201cand build a log cabin on it.\u201d\nCharlotte McMannis, the wife of Leon McMannis, who is Emma Clark\u2019s nephew and a beneficiary of 10% of the decedent\u2019s estate under his will, testified that she works in the office of the supervisor of assessments in Jackson County and that she saw the defendant in that office on two occasions in March of 1988, on March 7 and 14. On March 7 defendant had come in to check the deed that Lawrence White had received from the decedent and said that he was going to the decedent\u2019s attorney \u201cto see if anything could be done about that deed.\u201d On March 14 the defendant said he came in to get a legal description because he had someone interested in buying the farm. The defendant also said he did not realize how easy it was to get in someone\u2019s accounts. The witness described defendant\u2019s statement: \u201cYou could go to the bank with a power of attorney, no questions asked.\u201d The defendant testified that he did not know of anyone who wanted to buy the Hill Farm in March of 1988.\nThe discovery deposition of Charles Johnson was admitted into evidence. The witness is the vice-president and cashier at City National Bank and had been acquainted with the decedent for over 20 years. He described the conversation he had had with the decedent on September 14, 1988, which lasted \u201c[pjrobably a minute\u201d:\n\u201cJust as a matter of operating procedure our girls normally bring any instruments of substantial amount to my attention. They brought these and said these were going to be changed, just a routine matter of procedure. They indicated they were going to go into joint tenancy with Juel and Tommie Rains [sic]. Juel was sitting in front of my desk and I asked him if he wanted these put into joint tenancy with Tommie and he said yes, and I asked him if he understood that if something happened to him that this money would become Tommie\u2019s, and he said yes. I said, \u2018Fine, that\u2019s all I need to know.\u2019 \u201d\nThe defendant called as an adverse witness June Raines, who is his mother, the mother of Cheryl Kimmel, the decedent\u2019s sister-in-law, and a beneficiary of 10% of the decedent\u2019s estate under his will. She testified that in October of 1987 she had a conversation with the decedent concerning making a change in his will after Cheryl Kimmel had received benefits from his wife\u2019s insurance policy that, according to the witness, he felt he ought to have received. The witness had indicated that she did not think it was feasible for him to change his will at his age. The witness described the decedent\u2019s response: \u201c \u2018If I don\u2019t change my will,\u2019 he said, T can still sign my name and I\u2019ll change things before I die.\u2019 \u201d Later, during the summer of 1988, he offered the witness his house, which she declined, and she suggested that he give it to his brother Jack. Again the witness related the decedent\u2019s response:\n\u201c \u2018No. I\u2019ve discussed this with Jack several times and he said he didn\u2019t want anything because it would just mess him up with his pension and his free help he got.\u2019 He said, \u2018I\u2019ll just sign it all over to Tom. He\u2019s always been here for us when we needed help.\u2019 \u201d\nThe testimony of the defendant and of the decedent\u2019s attorney, Donald Elmore, given in a discovery deposition admitted into evidence, indicates that in approximately December of 1987, while discussing another matter, the decedent addressed with his attorney in the presence of the defendant the matter of a power of attorney and a deed to Hill Farm. The defendant had been assisting the decedent in a small claims matter in which the decedent had been defendant. Mr. Elmore stated that the last personal contact that he really remembered having with the decedent was around Christmas in 1987. Early in 1988 he had spoken on the telephone about the power of attorney and deeds with the decedent, who, he thought, had called him. He said that the last time he had spoken with the decedent on the telephone was sometime early in 1988, in January or February. Later he indicated that it was possible that he had talked with the decedent \u201cin the month or so\u201d before the deed was executed in September of 1988, but the witness could recall only a conversation in February of 1988.\nIn an evidence deposition, Dr. Courtland Monroe, who began to treat the decedent on November 17, 1987, testified that the decedent\u2019s problems when he was hospitalized on September 3, 1988, were in large part affected by his \u201cprofound depression.\u201d\nIn its 12-page judgment, the trial court expressly found \u201c[t]hat by \u25a0virtue of the Power of Attorney as well as the trust and confidence that JUEL CLARK reposed in the Defendant, a fiduciary relationship existed between JUEL CLARK and the Defendant, TOMMIE D. RAINS.\u201d The court found further:\n\u201cThat when this Court considers the totality of the evidence; the fiduciary relationship, the physical and mental weakness of the decedent, his age, disease, depression, living arrangements, the dependence of the decedent on the Defendant, lack of independent counsel since January-February, 1988, and the circumstances surrounding the execution of the deeds and transfer of accounts, this Court finds that the Defendant, TOMMIE RAINS [sic], at the time of the transfers of assets exerted undue influence upon JUEL CLARK which caused JUEL CLARK to make dispositions of his property that was [sic] not his free and voluntary act.\u201d\nThe trial court stated as well that\n\u201c[u]nder the circumstances herein, this Court finds that the Defendant breached his fiduciary duty in causing the bank accounts to be transferred into joint tenancy with himself and that the presumption of donative intent is effectively rebutted. This Court finds that JUEL CLARK lacked the donative intent to transfer said bank accounts by reason of the undue influence exerted by the Defendant, TOMMIE RAINS [sic]. Coupled with all the other surrounding circumstances and events since March, 1988, the Court finds that the executor has sustained the burden of proving by clear and convincing evidence that a gift was not intended by JUEL CLARK when he transferred his bank accounts into joint tenancy with the Defendant.\u201d\nThe trial court wrote:\n\u201cThe fact that none of the property in question was transferred pursuant to the Power of Attorney does not lessen the burden on Defendant to show by clear and convincing evidence that none of the transactions were the result of undue influence.\u201d\nIn his brief the defendant asserts with respect to the first issue presented for review that the trial court imposed a greater burden on the defendant in this case than is required by law and, in effect, required him \u201cto disprove some kind of presumption that exists apart from evidence giving rise to the presumption and its reasonable inferences.\u201d The defendant maintains that\n\u201c[t]he Court has misconstrued and misapplied the law of the State of Illinois and the concept of fiduciary relationships and the presumption of undue influence in such a way as to alter the burden of proof and improperly change the focus of evidence from a determination of the free will and agency of transferor based upon intention and conduct of the transferor and toward the knowledge of or physical presence of the transferor.\u201d\nA power of attorney gives rise to a general fiduciary relationship between the grantor of the power and the grantee as a matter of law. (Lemp v. Hauptmann (1988), 170 Ill. App. 3d 753, 525 N.E.2d 203.) Once the petitioner has shown that a fiduciary relationship exists, the presumption is that a transaction between the dominant and servient parties which profits the dominant party is fraudulent. (Lemp v. Hauptmann (1988), 170 Ill. App. 3d 753, 525 N.E.2d 203.) The dominant party then has the burden of proving by clear and convincing evidence that the transaction was fair and equitable and did not result from his undue influence over the servient party. Lemp v. Hauptmann (1988), 170 Ill. App. 3d 753, 525 N.E.2d 203.\nThe transactions between the defendant and the decedent occurred after the grant of the power of attorney by the decedent to the defendant on March 3, 1988, and the termination of that power upon the death of the decedent on September 24, 1988. Therefore, the presumption is that the transactions are fraudulent because of the fiduciary relationship between decedent and defendant. Thus, the defendant has the burden of proving by clear and convincing evidence that the transactions were fair and equitable to the decedent and that the transactions did not result from his undue influence over the decedent.\nThe creation of a joint tenancy account gives rise to the presumption that a gift to the surviving joint tenant is intended. (In re Estate of Clements (1987), 152 Ill. App. 3d 890, 505 N.E.2d 7.) To rebut this presumption, the party contesting the transfer must establish by clear and convincing evidence that a gift was not intended. (In re Estate of Clements (1987), 152 Ill. App. 3d 890, 505 N.E.2d 7.) Clear and convincing evidence is that which leaves no reasonable doubt in the mind of the trier of fact as to the truth of the proposition in question. In re Estate of Clements (1987), 152 Ill. App. 3d 890, 505 N.E.2d 7.\nIn the instant case, the trial court found that the executor has sustained the burden of proving by clear and convincing evidence that a gift was not intended by the decedent when he transferred his savings account and certificates of deposit into joint tenancy with the defendant. The trial court indicated further that the defendant\u2019s burden, in view of the fiduciary duty imposed by the grant of the power of attorney to him, was to show that none of the transactions were the result of undue influence. The record here is replete with evidence showing that the plaintiff met her burden of proof, whereas the defendant failed to meet his.\nThe findings of the trial court are not to be disturbed unless they are against the manifest weight of the evidence. (In re Estate of Kaminski (1990), 200 Ill. App. 3d 309, 558 N.E.2d 142.) The trial court is in the best position to make a determination as to the credibility of witnesses and the weight to be afforded testimony. (In re Estate of Kaminski (1990), 200 Ill. App. 3d 309, 558 N.E.2d 142.) In light of the record before us, the findings of the trial court in its carefully considered judgment may hardly be said to be against the manifest weight of the evidence and, hence, may not be disturbed.\nWith regard to the other issue defendant raises for review, he contends that the trial court improperly excluded as incompetent, pursuant to the Dead Man\u2019s Act, the testimony of his wife, Harriet Raines. He does not urge that the exclusion of her testimony resulted in prejudice to him. A party is not entitled to reversal based on rulings on evidence unless the error was substantially prejudicial and affected the outcome of the trial. (Cairns v. Hansen (1988), 170 Ill. App. 3d 505, 524 N.E.2d 939.) The burden is on the party seeking reversal to establish prejudice. (Cairns v. Hansen (1988), 170 Ill. App. 3d 505, 524 N.E.2d 939.) The instant defendant has failed to assert, much less to demonstrate or to establish, prejudice as a result of this exclusion. It is within the trial court\u2019s discretion to determine whether such testimony is necessary to a full and fair presentation of the facts of the case. (In re Estate of Kaminski (1990), 200 Ill. App. 3d 309, 558 N.E.2d 142.) There has been no showing that the trial court abused its discretion in this regard.\nAffirmed.\nRARICK, P.J., and CHAPMAN, J., concur.", "type": "majority", "author": "JUSTICE LEWIS" } ], "attorneys": [ "W.A. Armstrong, of Mitchell & Armstrong, Ltd., of Marion, for appellant.", "Patrick J. Hewson and Edward J. Heller, both of Reed, Heller & Mansfield, of Murphysboro, for appellee." ], "corrections": "", "head_matter": "NANCY WHITE, as Ex\u2019r of the Estate of Juel Clark, Deceased, Plaintiff-Appellee, v. TOMMIE RAINES, Defendant-Appellant.\nFifth District\nNo. 5\u201490\u20140173\nOpinion filed June 20, 1991.\nW.A. Armstrong, of Mitchell & Armstrong, Ltd., of Marion, for appellant.\nPatrick J. Hewson and Edward J. Heller, both of Reed, Heller & Mansfield, of Murphysboro, for appellee." }, "file_name": "0049-01", "first_page_order": 71, "last_page_order": 82 }