dissenting:
I am unable to agree with the result reached by the majority of the court.
By depositing her money in the two savings accounts in trust, the deceased created revocable inter vivos trusts, of which she was the sole trustee. By the language of the declarations of trust, quoted in the majority opinion, she was empowered to revoke, alter, or amend the trust at any time and in any way she saw fit. The procedure by which she could effect such a revocation, however, was not fully spelled out in either case. It is clear that she could do so simply by withdrawing some or all of the funds in each account. A simple written direction from her communicated to the savings and loan associations would also have sufficed. Yet it is here contended that a provision to the same effect contained in her will, which was executed with all the requisite safeguards and formalities, subsequent to the opening of the accounts, is not effective to revoke the trusts. I see no valid basis for such a distinction.
Furthermore, it is my view that a fair reading of the declarations of trust signed by the deceased would lead a depositor to the conclusion that the funds in the account are hers to deal with as she sees fit. The deposit agreements give the beneficiaries nothing more than a mere expectancy. It is apparent that the deceased in the instant case was under the impression that this property, like her other property, could be disposed of by will. There is no provision in the declarations of trust to the contrary.
The defendant principally relies upon Farkas v. Williams, 5 Ill2d 417, 125 NE2d 600, for the proposition that the rights of the settlor-trustee of a revocable inter vivos trust to deal with the property in the trust are not absolute, but are limited in accordance with the terms of the declaration of trust, 5 Ill2d at 422. But in Farkas, there was no attempted revocation by the settlor-trustee, and no other act on his part which was challenged as beyond his powers under the terms of the trust. The question in that case was whether those powers which were reserved to the settlor-trustee, were so extensive as to render the trust invalid as an attempted testamentary disposition. The court held that they were not so extensive as to require that result. A further distinction between Farkas and the instant case is that Farkas involved shares of capital stock, while this case involves deposits in bank accounts and that Farkas died intestate.
The recent case of In re Estate of Petralia, 32 Ill2d 134, 204 NE2d 1, raised the same question of law as in Farkas, but involved a savings account in the name of the deceased as trustee for a named beneficiary. Petralia differed from the instant case in that there was no formal declaration of trust, no will, and no question of revocation. As in Farkas, the validity of the trust was challenged by the intestate heirs. The court characterized the trust as a “tentative” or “Totten” trust, and held that the interest which passed to the named beneficiary at the time the account was opened, although contingent and highly destructible by act of the settlor-trustee, was sufficient to sustain the validity of the trust.
As to the joint savings account with right of survivor-ship, it is undisputed that the deceased had the right to withdraw the funds and close the account at any time, thereby depriving her joint tenant of any interest in the property. In my opinion this right impliedly gives her the right to achieve the same effect by so providing in her will. In Murgic v. Granite City Trust & Sav. Bank, 31 Ill2d 587, 202 NE2d 470, our Supreme Court held that one claiming adversely to the surviving joint tenant has the burden of establishing by clear and convincing evidence that a gift was not intended. In Murgic the depositor executed a will containing a general residuary bequest to heirs in Yugoslavia without mentioning the joint account. It is hard to imagine a manifestation of a depositor’s intention clearer than the Last Will of the depositor in the instant case, which specifically identified the accounts and left them to someone other than the joint tenant.
The intent of the deceased should be the guiding star in determining who receives her property at her death. It is her property to give, and unless she created an irrevocable trust her intention as to its disposition should govern. In my opinion, the will of the deceased in this case effectively revoked the trusts, and the funds should pass in accordance with the testamentary provisions.