{ "id": 5186534, "name": "In re ESTATE OF LORRAINE J. BLOM, Deceased (Karl Blom, Ex'r of the Estate of Lorraine J. Blom, Deceased, Petitioner-Appellee v. Linda Usher, Respondent-Appellant)", "name_abbreviation": "Blom v. Usher", "decision_date": "1992-09-09", "docket_number": "No. 2\u201491\u20141103", "first_page": "517", "last_page": "522", "citations": [ { "type": "official", "cite": "234 Ill. App. 3d 517" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "215 Ill. App. 3d 49", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5295132 ], "weight": 2, "pin_cites": [ { "page": "60" }, { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0049-01" ] }, { "cite": "69 Ill. App. 3d 552", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3241050 ], "weight": 2, "pin_cites": [ { "page": "555" }, { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0552-01" ] }, { "cite": "103 Ill. App. 2d 362", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1599821 ], "weight": 2, "pin_cites": [ { "page": "367-68" }, { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/103/0362-01" ] }, { "cite": "201 Ill. App. 3d 1061", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3241050 ], "weight": 4, "pin_cites": [ { "page": "555" }, { "page": "555" }, { "page": "555" }, { "page": "555-56" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/69/0552-01" ] }, { "cite": "31 Ill. 2d 587", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2833193 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "589" }, { "page": "591" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/31/0587-01" ] } ], "analysis": { "cardinality": 559, "char_count": 12558, "ocr_confidence": 0.803, "pagerank": { "raw": 7.714674448388771e-08, "percentile": 0.4538944162381668 }, "sha256": "79155dd9c789c6418fd93f0b6e3b9e8ac30e7d34b38c74663a8e05256b94b1e9", "simhash": "1:993fd790629605c5", "word_count": 2037 }, "last_updated": "2023-07-14T17:59:47.941433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re ESTATE OF LORRAINE J. BLOM, Deceased (Karl Blom, Ex\u2019r of the Estate of Lorraine J. Blom, Deceased, Petitioner-Appellee v. Linda Usher, Respondent-Appellant)." ], "opinions": [ { "text": "JUSTICE DOYLE\ndelivered the opinion of the court:\nLorraine Blom died November 7, 1988. Karl Blom, as executor of her estate, filed a citation to recover the proceeds of a money market account held in joint tenancy by decedent and respondent, Linda Usher. Respondent appeals the trial court\u2019s order that she turn over the balance of the account to the estate.\nIn 1987, decedent had cancer and her condition was slowly deteriorating. She was estranged from her only son, Karl. Respondent was a cousin of decedent. In January 1987, decedent executed a will naming respondent as primary beneficiary and executor. On June 20, 1987, decedent created a joint tenancy account with respondent at the McHenry State Bank by adding respondent\u2019s name to an existing money market account. Ambrose Kittl, a vice-president of the bank, explained to decedent the characteristics of a joint tenancy account, including the right of survivorship.\nDecedent subsequently executed a general power of attorney to respondent so that the latter could pay decedent\u2019s bills and generally handle her affairs. At this time, decedent was mentally alert but was physically impaired by the cancer.\nSometime during 1988, decedent reconciled with her son, Karl, who thereafter helped care for her. On October 20, 1988, decedent executed a second will naming Karl as executor and primary beneficiary. The will was prepared by attorney Leroy Welter and executed at decedent\u2019s home.\nOn November 1, 1988, respondent transferred $2,000 from the money market account to decedent\u2019s checking account in order to pay decedent\u2019s bills. On November 5, 1988, respondent closed the money market account. That same day she paid approximately $1,000 for decedent\u2019s funeral expenses pursuant to a pre-need agreement. On November 7, decedent died.\nKarl Blom, as executor of the estate, filed a citation against respondent to recover the balance of the money market account as well as certain items of personal property which respondent allegedly removed from decedent\u2019s home after her death. Following a hearing, the court ordered respondent to turn over to the estate the balance of the account, $22,287.99 as well as other property not presently at issue. Following the denial of her motion to reconsider, respondent now appeals.\nOn appeal, respondent contends that the court erred in finding that the account proceeds were the property of the estate. Specifically, she maintains that the estate failed to rebut by clear and convincing evidence the statutory presumption that the opening of the joint account constituted a gift of the funds to respondent and that the court erred in considering evidence of events prior and subsequent to the opening of the account as bearing on the decedent\u2019s intent. The estate responds that the only direct evidence of the decedent\u2019s intention shows that she placed respondent\u2019s name on the account solely for decedent\u2019s convenience.\nWhen a joint account is created in conformity with statutory requirements (see Ill. Rev. Stat. 1987, ch. 76, par. 2), a presumption arises that the person who furnishes the funds for the account intends to make a gift to the other person who is designated owner of the funds. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 590; In re Estate of Martin (1990), 201 Ill. App. 3d 1061, 1064.) The presumption is rebuttable, but the party challenging it has the burden of proving by clear and convincing evidence that no gift was intended. (Murgic, 31 Ill. 2d at 591; Martin, 201 Ill. App. 3d at 1064.) The critical question is the intent of the alleged donor at the time the account was created (In re Estate of Dawson (1968), 103 Ill. App. 2d 362, 367-68), but subsequent events may be considered as bearing on the issue of intent (In re Estate of Guzak (1979), 69 Ill. App. 3d 552, 555; Dawson, 103 Ill. App. 2d at 368). Evidence that the transfer was made for the mere convenience of the creator of the account is an indication of lack of donative intent. Guzak, 69 Ill. App. 3d at 555.\nIn the present case, respondent contends that there was no direct evidence of the decedent\u2019s intent at the time the account was created and that the court improperly based its finding on evidence of events occurring after the opening of the account. Respondent\u2019s theory appears to be that the placing of respondent\u2019s name on the money market account was part of decedent\u2019s estate plan, which included making respondent the executor and primary beneficiary of her will. Following decedent\u2019s reconciliation with her son, she changed her estate plan, making him the executor and beneficiary of her new will. The estate points to evidence that decedent consulted with her lawyer shortly before her death about revoking the power of attorney and asked respondent to take her name off the account. However, neither of these things was legally accomplished prior to her death. Respondent contends that decedent\u2019s subsequent change of heart is irrelevant in determining her initial intent where she failed to take the legal steps necessary to revoke the alleged gift.\nThe estate points to the testimony of Florence Welter, the wife of decedent\u2019s lawyer and a family friend. Welter stated that, about the time decedent had respondent\u2019s name added to the account, Welter had a conversation with the decedent. The decedent told her that she thought she would have respondent\u2019s name added to the account so that her cousin would have access to the money (in addition to the checking account covered by the power of attorney) in case of some major medical or other emergency and that she was going to put respondent\u2019s name on the account as a matter of convenience.\nIn addition, during respondent\u2019s deposition, when asked whether her name was put on the account for decedent\u2019s convenience, she responded:\n\u201cYes. *** Well, it wasn\u2019t really discussed. It was just on there.\u201d\nThe trial judge is in the best position to make a determination as to the credibility of the witnesses and the weight to be afforded their testimony. (White v. Raines (1991), 215 Ill. App. 3d 49, 60.) The trial court\u2019s findings of fact will not be disturbed unless they are contrary to the manifest weight of the evidence. (White, 215 Ill. App. 3d at 60.) In the present case, we cannot conclude that the trial court\u2019s finding that the account was created solely for the convenience of the decedent was against the manifest weight of the evidence. Florence Welter testified that the decedent told her she wanted to put respondent\u2019s name on the account for decedent\u2019s convenience so that respondent would have access to the money in case some catastrophic emergency befell decedent and the funds in her checking account proved insufficient. This was consistent with evidence that she also gave respondent a general power of attorney which permitted respondent to pay decedent\u2019s bills on a regular basis. Respondent\u2019s above-quoted answer to a deposition question appears to be consistent with an interpretation that her name was added only for the decedent\u2019s convenience.\nIn contrast, there was no direct evidence of a contrary intention. Respondent relies on the presumption arising from the execution of the joint account agreement itself and Kittl\u2019s testimony that he explained the consequences to decedent. However, Kittl also stated that the bank did not have \u201csignature for convenience\u201d accounts. Thus, the joint account agreement would have been the only method available to decedent to accomplish her purpose.\nThe evidence of subsequent events, such as changing the will, does not directly bear on the issue and can be viewed as supporting either theory. The trial court, which had the opportunity to observe the witnesses and their demeanor, chose to accept the estate\u2019s version. The court\u2019s conclusion is supported by the evidence.\nFor the foregoing reasons, the court\u2019s judgment is affirmed.\nAffirmed.\nBOWMAN, J., concurs.", "type": "majority", "author": "JUSTICE DOYLE" }, { "text": "JUSTICE NICKELS,\ndissenting:\nBecause I find the trial court\u2019s determination that petitioner presented clear and convincing evidence sufficient to overcome the presumption of decedent\u2019s donative intent at the time of the creation of the joint tenancy was against the manifest weight of the evidence, I respectfully dissent.\nThe creation of a joint tenancy is presumed to have been made with donative intent unless the party seeking to avoid the gift comes forward with clear and convincing evidence that, at the time of the creation of the joint tenancy, no gift was intended. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 589.) This burden does not shift to the survivor of the joint tenancy. (Murgic, 31 Ill. 2d at 591.) Clear and convincing evidence is something less than beyond a reasonable doubt, but something more than a preponderance of the evidence. (In re Stephenson (1977), 67 Ill. 2d 544, 556-59.) However, factors that may be considered include evidence that the transfer was made solely for the convenience of the creator and the value of the account in relation to the total assets of the estate. (See Guzak, 69 Ill. App. 3d at 555.) Especially relevant, however, is the retention of control and authority over the account by the grantor. (Guzak, 69 Ill. App. 3d at 555.) Thus, circumstances and events that occur after the creation of the account may be considered. Guzak, 69 Ill. App. 3d at 555.\nIn addition to the presumption of donative intent, respondent offered evidence that, at the time of the creation of the joint tenancy, the right of survivorship was fully explained to and understood by decedent. Shortly before the creation of the joint account, decedent indicated an intent to make a future gift to respondent by naming respondent as the executor and primary beneficiary under decedent\u2019s will. Decedent also executed a power of attorney in favor of respondent and relinquished all control over her financial affairs to respondent. The joint account contained slightly more than $22,000 in contrast to the balance of decedent\u2019s estate in excess of $150,000.\nTo rebut the presumption and this circumstantial evidence, petitioner offered testimony of decedent\u2019s attorney\u2019s spouse, who was a family friend, that decedent had indicated that the account was created so that respondent would have access to the funds to pay any extraordinary medical expenses incurred by decedent, and respondent\u2019s affirmative response to a question at her deposition inquiring whether the creation of the joint account was for decedent\u2019s convenience. Thus, there was some evidence that the creation of the joint account was as a convenience for decedent.\nHowever, such evidence does not rise to the level of clear and convincing evidence. The crucial factor of retained control is absent. (Guzak, 69 Ill. App. 3d at 555-56.) There is no evidence that convenience was the sole reason for decedent\u2019s actions. (See In re Schneider (1955), 6 Ill. 2d 180, 183 (decedent told joint tenant that purpose of joint account was \u201cin case I am sick you can go and get the money for me\u201d).) Respondent qualified her affirmative response to a question concerning the creation of the joint account for decedent\u2019s convenience by indicating that there had been no discussion of the matter. Although the creation of the joint account was undoubtedly convenient for decedent, absent evidence of retained control or an express indication that it was created solely as a matter of convenience for decedent, it does not absolutely follow that decedent did not also intend respondent to eventually receive such funds.\nPetitioner\u2019s evidence was insufficient to rebut the presumption of donative intent arising from the creation of the joint account, which was further circumstantially supported by evidence of decedent\u2019s conduct in contemporaneously naming respondent her primary beneficiary, evidence of decedent\u2019s clear understanding of the import of the creation of the joint account, and the complete lack of control or authority retained by decedent over such account. Therefore, because I would hold that petitioner failed its burden of proof to rebut by clear and convincing evidence the presumption of donative intent at the time the joint account was created, I respectfully dissent.", "type": "dissent", "author": "JUSTICE NICKELS," } ], "attorneys": [ "Donald R. Brewer, of Dundee, for appellant.", "Leonard Cuttone, of Park Ridge, for appellee." ], "corrections": "", "head_matter": "In re ESTATE OF LORRAINE J. BLOM, Deceased (Karl Blom, Ex\u2019r of the Estate of Lorraine J. Blom, Deceased, Petitioner-Appellee v. Linda Usher, Respondent-Appellant).\nSecond District\nNo. 2\u201491\u20141103\nOpinion filed September 9, 1992.\nNICKELS, J., dissenting.\nDonald R. Brewer, of Dundee, for appellant.\nLeonard Cuttone, of Park Ridge, for appellee." }, "file_name": "0517-01", "first_page_order": 537, "last_page_order": 542 }