concurring in part and dissenting in part:
I agree the two accounts at the Bank of Maroa, although containing some joint-tenancy language, were not joint-tenancy accounts. The accounts describe Trevor as holding a power of attorney, which is inconsistent with the idea that he possesses any interest as a joint tenant. I agree that the transfers from individual funds of $10,000 on February 14, 1992, and $5,000 on February 12, 1992, which Trevor accomplished by virtue of his power of attorney, did not result in a joint tenancy. One holding a power of attorney may not use that power for his own personal benefit, and no presumption of donative intent arises when the attorney does so. I also agree that the $20,000 CD at First National Bank, held in the names "Wilmah Rybolt, POD Trevor Leach,” was held in joint tenancy and is now the property of Trevor. I disagree that the original deposit of $20,200 to the Edward D. Jones joint account was not held in joint tenancy and is not the property of Trevor.
There are too many presumptions dealing with gifts and bank accounts, and many of them are conflicting. In the long run it must be the trial court which decides whether the case before it is one where the decedent’s wishes should be respected, or one where a fiduciary has taken advantage of a decedent. The many presumptions in this area often interfere with the trial court making that decision, or worse, convince the trial court that it need not attempt to make a decision. This case should not be decided on the basis of which presumption was stronger than the other. As to the argument that the presumption of fiduciary fraud outweighs the presumption of donative intent inherent in the creation of a joint tenancy, Murgic (31 Ill. 2d at 589, 202 N.E.2d at 471-72) held that the presumption of donative intent itself could only be overcome by strong evidence— clear and convincing evidence that a gift was not intended.
Finally, I disagree with the implication that the $20,000 CD at First National Bank may only be upheld because of the persuasive testimony of the bank employees, and the indication that the $20,200 original investment in the Edward D. Jones account would have been upheld if more evidence had been admitted as to the decedent’s intent. Those transactions were accomplished by decedent herself, not through any power of attorney. In the absence of any breach of fiduciary duty, the mere creation of a joint tenancy gives rise to the presumption of donative intent. (Murgic, 31 Ill. 2d at 589, 202 N.E.2d at 471-72.) "Public policy would seem to require the adoption by the courts of a more liberal and practical view of these common transactions.” (Frey v. Wubbena (1962), 26 Ill. 2d 62, 66, 185 N.E.2d 850, 853.) The validity of a joint-tenancy account should not rest on the uncertain testimony of bank employees given long after the fact. It may be time for a reconsideration of Murgic and Frey but that reconsideration is not a proper task for this court.