dissenting:
I respectfully dissent.
In 1985 Dewey Savage, Sr., opened a joint checking account at Mount Zion State Bank and Trust Company. He named his daughter Sharon and his son Roger as joint tenants on that account. About the same time he changed over a money market account which he had held in joint tenancy with his deceased wife, also naming Sharon and Roger as joint tenants on that account. Dewey, Sr., had held two $25,000 certificates of deposit (CDs) in joint tenancy with his deceased wife. In 1987 Dewey, Sr., changed the registration of the CDs to add Sharon’s name as a joint tenant. At some point Roger’s name was removed from the joint accounts, apparently by Dewey, Sr.
The trial court made the following finding:
"That in this case, the Court believes that the intention of the formation of the joint accounts was to create 'convenience accounts’ for the daughter to help her elderly father pay bills. It was not his intention for his daughter to spend all his money and force him to apply for public aid before his death.”
A convenience account is an account, apparently held in some form of joint tenancy, where in fact the creator did not intend the other tenant to have any interest, present or future, but had some other intent in creating the account. An example of a convenience account is an account where the creator only wanted the other tenant to write checks at the creator’s direction, and not to have any share in the account during the creator’s life or on the creator’s death. (In re Estate of Harms (1992), 236 Ill. App. 3d 630, 634, 603 N.E.2d 37, 41.) The creation of a joint tenancy account gives rise to a presumption of donative intent, and a party claiming that the account is only a convenience account has the burden of proving by clear and convincing evidence that a gift was not intended. Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 589, 202 N.E.2d 470, 471-72.
The evidence in no way supports the trial court’s conclusion that these were only convenience accounts, and that Dewey, Sr., did not intend Sharon to have any interest in the accounts either during his life or on his death. It was not necessary that Sharon write checks for Dewey, Sr., at the time the joint checking account was created. Dewey, Sr., continued to write his own checks until March 1988. Certainly Sharon’s name was not placed on the money market account or the CDs so that she could write checks, as those assets were not checking accounts. The evidence indicates that Dewey, Sr., placed every asset he owned into joint tenancy, something not to be expected of one who only wants help in paying his bills. The fact that Sharon made substantial deposits to the checking account is inconsistent with the idea the account was only a convenience account. Even if the trial court is correct that Dewey, Sr., created the joint checking account so that he would have help in paying his bills, that fact is not inconsistent with an intention on Dewey, Sr.’s part that his surviving joint tenant would take the account on his death. In re Estate of Taggart (1973), 15 Ill. App. 3d 1079, 1084-85, 305 N.E.2d 301, 305 (intent to create present interest in account may be rebutted, intent to vest title in survivor conclusive).
It is not improbable that Dewey, Sr., would have preferred Sharon over his two sons. Sharon lived near her father, saw him frequently, and was a great help to him in his last years. Dewey, Sr., frequently expressed his closeness to Sharon and his intention to prefer her in the distribution of his estate. Dewey made outright gifts to Sharon but not to his sons. The two sons hardly ever visited their father, were of little help to him except for Roger, who prepared his income tax returns, and may not have been on good terms with him. The striking thing about this case is that Dewey, Jr., whose name was never on any of the joint accounts, and who had almost nothing to do with his father, is treated equally with Sharon and Roger by the trial court’s order. Even if there were no presumption of donative intent, the evidence that Dewey, Sr., intended the survivor of his joint accounts to have those accounts is very strong in this case.
Dewey, Sr., gave Sharon his power of attorney on April 17, 1987. Sharon argues that power was never used, and the record seems to support her in that. None of the transactions done by Sharon required the use of the power of attorney. When Dewey, Sr.’s home was sold the proceeds were deposited into the joint money market account. Roger argues that Sharon made that deposit, but Dewey, Sr., was present at the closing. Dewey, Sr., himself had sold stock in 1986 and deposited those proceeds to the joint money market account. Even if Sharon did make the deposit of the home proceeds, she was entitled to follow the custom and practice employed by Dewey in making deposits. (Harms, 236 Ill. App. 3d at 640, 603 N.E.2d at 44-45.) Because all Dewey’s accounts were joint accounts, any deposit to an existing account would have resulted in the funds being held jointly.
The most serious complaint about Sharon is that she used the jointly held funds for her own personal benefit. If Sharon had a present interest in the accounts, she was entitled to use the funds. If the trial court determined that Sharon had no present interest, it should have directed that the funds taken be returned to the accounts, where of course they would have passed to Sharon anyway, by right of survivorship. (See Harms, 236 Ill. 2d at 640, 603 N.E.2d at 44.) The trial court was concerned that Dewey, Sr. (or Sharon on his behalf), was forced to apply for public aid. While Sharon’s conduct in reducing Dewey, Sr.’s assets to a level which would qualify him for public aid may be criticized, it appears that the Department of Public Aid approves of such conduct. See Brengola-Sorrentino v. Department of Public Aid (1984), 129 Ill. App. 3d 566, 573, 472 N.E.2d 877, 882 (failure to advise plaintiff of Department’s asset-reduction policy violated her due process rights).
In my view Sharon had at least a right of survivorship in all these joint accounts. Although it is possible she wronged Dewey, Sr., by her personal expenditures, she did not commit any wrong against her brothers. As the decision in favor of the brothers should be reversed, the award of punitive damages would also fall.