concurring in part and dissenting in part:
Although I concur in the majority’s decision to reverse the judgment of the trial court in this cause, I must respectfully dissent from that portion of the majority’s opinion which finds that respondent did not present sufficient evidence to prove that she held an interest in the CD as a joint tenant pursuant to the Joint Tenancy Act (hereinafter the Act) (Ill. Rev. Stat. 1985, ch. 76, par. 1 et seq.). I believe that there was more than adequate evidence presented to establish that the CD was held in a joint tenancy.
Section 2 of the Act provides, in pertinent part, the following:
Ҥ2. 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 or incident of survivorship as between joint tenants or owners of personal property is hereby abolished, and all such joint tenancies or ownerships shall, to all intents and purposes, be deemed tenancies in common; provided, that the foregoing shall not be deemed to impair or affect the rights, privileges and immunities, as set forth in the following provisos, (a), (b), (c), (d) and (e):
(a) 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 two or more persons payable to them when the account is opened or thereafter, such deposit or any part thereof or any interest or dividend thereon may be paid to any one of said persons whether the other or others be living or not, and when an agreement permitting such payment is signed by all said 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.) (Ill. Rev. Stat. 1985, ch. 76, par. 2.)
Accordingly, the Act has been construed to require a signed agreement stating that the property is held in a joint tenancy subject to rights of survivorship. However, the existence of such an agreement can be demonstrated by evidence other than a signature card. It is appropriate for a court to consider the circumstances surrounding the creation of the account and events occurring afterwards. The factors relevant to such a consideration include the exercise of authority and control over the account and the survivor’s understanding of the account. In re Estate of Regelbrugge (1992), 225 Ill. App. 3d 593, 596-97, 588 N.E.2d 351.
In Regelbrugge, the administrator of the decedent’s estate initiated a citation proceeding on behalf of the estate to recover the proceeds of three bank accounts which passed by survivorship to decedent’s sister and former wife, the respondents. The trial court entered judgment in favor of the estate with regard to one of the accounts. One respondent appealed from the portion of the trial court’s judgment finding the third account to be property of the estate.
The estate contended that because the original signature card bearing the respondent’s signature was not produced, the respondent failed to prove that a joint tenancy came into existence. In rejecting this contention and reversing the trial court, the Regelbrugge court focused on the fact that the respondent, whose signature was missing, testified that she had signed a signature card for the account and that both she and the decedent kept a savings book for the account. The respondent also testified that while she only made deposits to the account during the decedent’s lifetime, she understood that she was also able to make withdrawals. Additionally, the savings books admitted into evidence contained the names of both the decedent and the respondent. Finally, the testimony of both the respondent and a bank employee was corroborated by bank records indicating that the bank had sent the respondent statements for the account.
The uncontroverted facts in the case at hand more clearly demonstrate that decedent and respondent established a joint tenancy with right of survivorship account at the First State Bank and Trust Company of Park Ridge than those of Regelbrugge. Here, unlike in Regelbrugge, there was physical evidence of the fact that decedent and respondent both contemporaneously signed a buff-colored signature card which contained the requisite joint tenancy agreement. The buff-colored cards were used by the bank for no purpose other than to create a joint tenancy. The bank employee servicing decedent and respondent realized that decedent and respondent signed a card for a non-interest-bearing checking account (a buff card) when, in fact, the parties wished to open a NOW or interest-bearing checking account. This employee, instead of having the parties sign a blue card for a NOW account, which contained a box to check off in order to create a joint tenancy, simply cut the signature portion off the buff card and pasted it onto the blue NOW account card and checked off the joint tenancy box. The record indicates that this operation, the cutting and pasting of the signed portions of signature cards, was standard procedure at the bank for those customers who wished to change their accounts’ status from non-interest-bearing to interest bearing.
Pursuant to bank policy, the original account opened by a customer would operate as the reference or base account for all subsequent accounts of the same title, i.e., individual accounts, joint tenancy accounts, etc. Thus, by initially opening a joint tenancy NOW account, any subsequent account, such as the CD, was tied to the base account as files of that account and subject to its terms. This fact is further corroborated by respondent’s testimony, which the trial court found “very credible,” that decedent requested the account be established under the same terms as the checking account. Additionally, both of the witnesses from the bank testified that had an account with terms differing from the original NOW account been requested, decedent and respondent would have both been required to execute a new Internal Revenue Service form W-9. No such new form was ever executed. Moreover, the CD references the base account number on its face. I believe all of this evidence clearly evinces an intent of decedent and respondent to create a joint tenancy with a right of survivorship.
Accordingly, I would reverse the circuit court’s judgment on the basis of the existence of the CD as a joint tenancy.