No. 2--01--1384

JUSTICE GROMETER delivered the opinion of the court:

The present appeal involves the status of three bank accounts establishedby Helen Weiland, now deceased. The People of the State of Illinois ex rel.James E. Ryan, Attorney General of the State of Illinois, filed a claim againstrespondent Albert S. Salvi, the executor of Weiland's estate. Madeline Baurhyte,Robert Baurhyte, Glen Baurhyte, Timothy Baurhyte, and Michaeline Smith (theBaurhyte claimants) filed a separate claim naming as respondents Genevieve Smith,Salvi, and Weiland's estate. The State and the Baurhyte claimants alleged thatthe three bank accounts were payable-on-death (POD)accounts and that the accountswere improperly liquidated by Weiland's guardian after Weiland was adjudgeddisabled but before her death. Respondents disputed these allegations. Following a consolidated bench trial in the circuit court of Lake County, thetrial court determined that all three accounts were POD accounts and that theywere improperly liquidated. Respondents timely appealed.

On December 30, 2002, this court filed its opinion. We affirmed in partand reversed in part. Specifically, we reversed that portion of the trialcourt's ruling that one of Weiland's bank accounts was a POD account naming theBaurhyte claimants as beneficiaries. The basis for our decision was that thetrial court applied the wrong standard of proof in assessing the Baurhyte claim. The Baurhyte claimants filed a timely petition for rehearing disputing ourfinding. We granted the petition for rehearing and withdrew our prior opinion. For the reasons that follow we adhere to our finding that the trial court appliedthe wrong standard of proof. Accordingly, we affirm the decision of the trialcourt in part and reverse in part.

I. BACKGROUND

A. The Bank Accounts

The present dispute centers on three bank accounts established by HelenWeiland. Weiland opened account No. 0452085723 (5723) at Affiliated Bank onJanuary 3, 1991. Early in the nineties, Comerica Bank acquired Affiliated Bank. On February 17, 1994, following the acquisition, Weiland opened account Nos. 0453024168 (4168) and 0453024218 (4218) at Comerica Bank. Sometime later,LaSalle Bank acquired Comerica Bank. Account No. 5723 is the subject of theclaim brought by the Baurhyte claimants; account Nos. 4168 and 4218 are thesubjects of the claim brought by the State. B. Liquidation of Accounts

In July 1997, Weiland, then 92, was adjudged disabled. Joseph Vogler, thepublic guardian of Lake County, was named guardian of Weiland's person andestate. Weiland was then placed in a nursing home. Vogler was succeeded byWeiland's sister, Genevieve Smith. Smith hired attorney Albert Salvi, Sr., torepresent her in the administration of Weiland's estate.

On May 22, 1998, Salvi closed account No. 5723 and deposited the funds intoan account held in the guardian's name. In June 1998, Salvi petitioned thecircuit court of Lake County to revoke 11 other bank accounts held by Weiland atLaSalle Bank. Salvi believed that the bank accounts were POD accounts, alsoknown as Totten trusts. A Totten trust is created when a deposit is made by aperson (the holder) of his or her own money in his or her own name as trustee foranother. In re Estate of Davis, 225 Ill. App. 3d 998, 1005 (1992). The guardianof a disabled person's estate may revoke a Totten trust only with courtauthorization. 755 ILCS 5/11a--18(d) (West 1998). Moreover, such funds may onlybe used "as necessary for the comfort and suitable support and education of theward *** or for any other purpose which the court deems to be for the bestinterests of the ward." 755 ILCS 5/11a--18(a) (West 1998).

Included in the list of accounts Salvi sought to revoke were account Nos.4168 and 4218. According to the petition, the funds in the Totten trusts wereintended to cover "anticipated overall cost and expense in sustaining the ward'sperson and estate" and "the exposure of federal estate, state inheritance anddeath tax liability in the event of the ward's death."

On or about June 29, 1998, Judge Bernard Drew granted the guardian'spetition. The order provided in relevant part:

"IT IS FURTHER ORDERED that the guardian of the estate is authorizedto amend or revoke the Totten Trusts set forth in the petition to theextent necessary to provide increased income to the estate and to providefunds necessary for the care, management and investment of the estate,protective of any beneficiary contingent interest as much as is reasonablypossible considering the needs and best interests of the ward pursuant to755 ILCS 5/11a-18(d) while preserving the interests of the beneficiariesby accounting of the guardian."

Following Weiland's death on October 3, 1999, her disabled person's estatewas closed. On or about October 22, 1999, the decedent's estate was opened andSalvi was appointed as independent executor. On May 4, 2000, the Baurhyteclaimants and the State filed the claims that comprise the present dispute.

C. Claims 

The State brought its claim on behalf of the People of the State ofIllinois "as the ultimate beneficiaries at common law of all assets given or heldfor charitable public-benefit purposes." The State alleged that account Nos.4168 and 4218 were Totten trusts naming charitable beneficiaries and that theaccounts were improperly liquidated in violation of Judge Drew's June 1998 order. According to the State, the liquidations were improper because Weiland's disabledperson's estate contained sufficient assets to provide for her needs. Thus, thefunds in the Totten trusts were not necessary to provide for the care andmanagement of Weiland's disabled person's estate as required by sections 11a--18(a) and (d) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11a--18(a),(d) (West 1998)).

The Baurhyte claimants filed a two-count complaint. Count I was directedagainst Salvi, as independent executor of Weiland's estate. The Baurhyteclaimants alleged that Weiland created certain bank accounts, including accountNo. 5723, as Totten trusts, naming them as beneficiaries. The Baurhyte claimantsfurther alleged that the funds in the Totten trusts established for their benefitwere not needed or used for Weiland's benefit. Count II was directed againstSmith, as the guardian of Weiland's estate. However, Smith was voluntarilydismissed by the Baurhyte claimants prior to trial and is not a party to thisappeal.

D. Trial Testimony

The trial commenced on January 22, 2001. Lynn Wanner, the keeper ofrecords for LaSalle Bank, was the first witness. Wanner testified that shehandles document production in response to court requests. Wanner compiledcopies of documents related to Weiland's accounts, including bank statements andsignature cards. It is the back of the signature card that the customer mustcomplete in order to designate an account as a Totten trust. Relevant here,Wanner produced the front and back of a signature card dated January 3, 1991, foraccount No. 5723, the front of a signature card dated February 17, 1994, foraccount No. 4168, and the front and back of a signature card dated February 17,1994, for account No. 4218. Admitted into evidence by stipulation of the partieswere the signature cards pertaining to Weiland's accounts.

Wanner also produced documents purporting to be monthly bank statements foraccounts 4168 and 4218. The statements are dated from February 17, 1994, throughAugust 31, 1997. The statements for account No. 4168 are addressed to "HELEN LWEILAND, POD ST FRANCES DESALES [sic] CATHOLIC CHURCH, POD CALVARY CHAPEL OF LAKEVILLA, POD THE MARYKNOLL FATHERS & BROTHERS NY." The statements for account No.4218 are addressed to "HELEN L WEILAND, POD NORBERTINE FATHERS, POD OUR LADY OFMIRACULOUS MEDAL & REV CHARLES F SHELBY & JAMES ILLICHMAN." Wanner admitted thatthese statements were not the actual statements mailed to the customer. Rather,they represented computer printouts of the records of LaSalle Bank as theyexisted at the time they were generated for the litigation. Wanner stated,however, that the information used to produce both the computer printouts and thestatements that are mailed to the customer is identical and that the sameinformation is sent to the customer.

Lisa McCarthy testified that in July 1997 she was employed as a personalbanker at LaSalle Bank. McCarthy's duties included providing information tocustomers concerning their accounts. McCarthy noted that account information wasroutinely entered into the bank's computer system and that, in providingcustomers information about their accounts, she relied on the computer recordsas well as signature cards and other bank documents. To the best of McCarthy'sknowledge, the bank kept copies of such requests and the bank's responsesthereto.

On July 8, 1997, at her supervisor's request, McCarthy responded to aninquiry from the public guardian of Lake County regarding the status of Weiland'saccounts at the bank. McCarthy's letter listed 11 separate accounts belongingto Weiland. Among the accounts identified were account Nos. 4168, 4218, and5723, all three of which listed POD beneficiaries. McCarthy testified that shegathered the information included in the letter from the bank's computer records. McCarthy was unable to recall whether she examined the signature cards indrafting the letter. The letter was admitted into evidence over respondents'objection.

McCarthy testified that, if a customer wanted to add a POD beneficiary tohis or her account, she would have the customer complete a new signature card. Regarding the entry of account information into the bank's computer system,McCarthy recalled that the bank used to send any account changes to a centralprocessing department to have the changes recorded. However, at some point,these changes were able to be made at the bank branch.

Michael Williams testified that in 1994 he was senior pastor at CalvaryChapel in Lake Villa and was employed as a personal banker at Comerica Bank. Williams first met Weiland on February 17, 1994, when she opened two individualaccounts (Nos. 4168 and 4218) at the bank. According to Williams, the accountswere not established as Totten trusts. Shortly after Weiland opened theaccounts, Williams made the first of approximately 15 to 20 visits to her home. Williams explained that the purpose of the initial visit was to determine whetherWeiland intended account Nos. 4168 and 4218 to have POD beneficiaries. Accordingto Williams, he was concerned because those two accounts were the only accountsWeiland held at the bank that did not have POD beneficiaries.

Weiland did not make a decision on Williams's first visit. However,Williams made additional visits because Weiland "was lonely, and [he] enjoyed hercompany, and she loved the Lord, and [they] had good conversations." After aboutfive or six visits, Weiland told Williams that she wished to designate PODbeneficiaries. Weiland gave Williams a sheet of paper listing the intendedbeneficiaries of account No. 4168 as St. Francis de Sales Church, Calvary Chapelof Lake Villa, and Maryknoll Fathers and Brothers, and the intended beneficiariesof account No. 4218 as Norbertine Fathers, Our Lady of the Miraculous Medal,Reverend Charles F. Shelby, and James Illichman. Williams testified that heattempted to dissuade Weiland from including the Calvary Chapel as one of thebeneficiaries because he did not want Weiland "to feel like [he] was makingvisits enjoying her company just to have Calvary Chapel on [the list ofbeneficiaries]." However, Weiland insisted that the Cavalry Church be named abeneficiary. Williams returned to the bank to prepare the necessary forms toauthorize the POD beneficiaries for the two accounts. Although Williams couldnot recall for certain which forms he filled out, he believed the forms wereeither change-of-address or file-maintenance forms. The following day, Williamsbrought the forms to Weiland's house, and she signed the documents. Williams didnot complete a new signature card for either of the two accounts because he was"unaware of the procedure."

Williams then sent the forms to the file-maintenance division to input theinformation in the computer system. Williams testified that in the past if acustomer signed the wrong forms or the forms were not complete, the file-maintenance division would send them back to be completed properly. The file-maintenance division never informed Williams that Weiland completed the wrongforms or that they were incomplete. In fact, Williams checked the computersystem a few days after he submitted the changes and discovered that theinformation was properly entered into the system.

On cross-examination, Williams admitted that in the past he testified thatthe only form that Weiland signed was a change-of-address form. Williams alsoacknowledged that when he attempted to explain the difference between a moneymarket account and a certificate of deposit to Weiland, she became confused. Williams also admitted that he did not reveal the nature of his relationship withWeiland to anyone at the bank. Williams further stated that his salary atCalvary Chapel increased "[a]s the church grew." Finally, Williams testifiedthat in 1995 or 1996 Weiland told Williams that she liked her funds where theywere and that Williams "shouldn't do anything with them." Williams believed thatWeiland's sentiments grew out of "speculation of when I was accused of taking orasking her for money."

Cindy Scardino testified that she is the assistant manager of a LaSalleBank branch in Lake Zurich and was Williams's boss in 1994. Scardino helpedprepare the bank's operations manual for personal bankers. The manual includesinstructions for opening different types of bank accounts, including thosedesignated as Totten trusts. According to Scardino, while some bank forms havechanged over the years, it has always been true that a signature card isnecessary to change the beneficiary on an account. Scardino stated that duringthe time the bank was known as Affiliated Bank the process for changing thebeneficiary on a Totten trust involved executing a new signature card andcompleting a file-maintenance form reflecting information on both the originaland replacement signature cards. After the customer signed both documents, thepersonal banker would enter the information into the bank's computer system. Thepersonal banker would then contact another banker to compare the information onthe file-maintenance form with the information entered into the computer system. Scardino admitted that the integrity of this "double-check" system depended onthe personal banker who opened the account asking a second banker to review thechanges. Ultimately, the file-maintenance form and the new signature card wereforwarded to a centralized facility for storage. According to Scardino, thissame general procedure was followed when the bank became Comerica Bank. Scardinoalso testified that, even if a customer's account statement does not list PODbeneficiaries, it does not mean that there are not any POD beneficiaries on theaccount.

On cross-examination, Scardino acknowledged that there was a time whenpersonal bankers were not permitted to input data directly into the bank'scomputer system. Instead, documentation was sent to the file-maintenancedivision for entry into the system. Scardino was unaware of the exact dates whenthe change allowing personal bankers to input the information came into effect. Scardino believed that the file-maintenance division would have required thebranch to substantiate any request by requiring a document with the customer'ssignature or having the required forms completed properly. In this regard,Scardino recalled that in 1994 the account owner would have to sign the file-maintenance form. Scardino also noted that Comerica used to print the names ofbeneficiaries on account statements, whereas LaSalle Bank does not.

Margaret Steiner was employed as the manager of a Lake Zurich branch ofLaSalle Bank from 1995 to 2000. Prior to working at the Lake Zurich branch, shewas employed at Comerica Bank. Steiner explained the procedure used in 1994 tochange an account from an individual account to an account with a PODbeneficiary. Steiner testified that "in most cases" the existing account wouldbe closed and a new account would be opened. When the new account was opened,the old signature card was replaced with a new signature card. Steiner explainedthat the reason for requiring the customer to open a new account was that thesignature cards were not always stored at the bank branch. As a result, thebanker would not always possess the signature card in order to change adesignation on it. However, Steiner admitted that, "if somebody wanted to adda beneficiary to an account, sometimes people did that [add a beneficiary to anexisting account without executing a new signature card] but you weren't supposedto." She also agreed that someone conceivably "could go in the system" and adda name. Steiner stated that a file-maintenance form would be used for changesof address, new phone numbers, or to correct misspelled names. Although Steinertestified that it was not the bank's policy to use the file-maintenance form toadd new beneficiaries to an account, she could not say that the form was neverused for that purpose.

According to Steiner, when the bank was part of Comerica, it was theprocedure for personal bankers to complete forms in their branch and then sendthem to a centralized facility for input into the system. Steiner also explainedthat in 1994, after an account was opened, the signature card was forwarded toa central facility to be microfiched. The original was then returned to thebranch for storage. The file-maintenance forms, however, were kept for only oneyear before being discarded. Steiner believed that the most likely explanationfor an inconsistency between the bank's computer records and the signature cardis that "someone changed them." However, Steiner also admitted that thedocumentation needed to effectuate such a change could have been destroyed orlost.

Albert Salvi, Sr., testified that he was hired in 1997 as the attorney forSmith in her capacity as the guardian of Weiland's disabled person's estate. OnJune 3, 1998, Salvi assisted Smith in preparing an inventory of Weiland's estate. Item number 16 on the inventory was the guardian's checking account at LaSalleBank with a balance of $192,681.64. Salvi testified that the funds in theguardian's checking account included $10,000 from account No. 5723. Accordingto Salvi, the bank informed him that account No. 5723 was in Weiland's "solename" and would only require a copy of the letters of office in order to withdrawmoney from the account. Salvi admitted that he did not examine the signaturecard for account No. 5723 but believed the account was in Weiland's name alonebecause of what "the representative at the bank indicated to [him]." Ultimately,the entire proceeds of account No. 5723 were deposited into the guardian'schecking account.

Based on statements made by representatives at LaSalle Bank, Salvi believedthat some of Weiland's accounts, including account Nos. 4168 and 4218, wereestablished as Totten trusts. As a result, Salvi filed a petition to revokethose accounts. Salvi testified that he sought to liquidate the accounts inorder to have sufficient funds to pay expenses, taxes, and other obligations ifWeiland were to die. Salvi did not want to sell Weiland's house to satisfy herneeds because, although it appeared that Weiland was permanently disabled, "therewas always the possibility that she could be restored." Salvi further explainedthat the home was important to Weiland and "there is no way we could have soldthat home and felt comfortable that she would never need that home again." Salvitestified that he later learned that some of the accounts he believed were Tottentrusts were not POD accounts.

On cross-examination, Salvi testified that the reason he petitioned torevoke the Totten trusts was to cover anticipated costs for the care, management,and investment of Weiland's estate. The basis for Salvi's belief that the estatehad insufficient assets was a cost/expense analysis he prepared on May 1, 1998,which listed the following estimated expenses:

"1. Lexington Nursing Home

($4,154.00 per month) $ 51,700.00

2. Attorneys--Guardian's Estate 16,050.00

3. Guardian's Fee 9,492.00

4. 1999 Real Estate Taxes 3,500.00

5. Federal Estate Taxes 165,000.00

6. State Death Tax 44,197.00

7. 1999 Income Tax ($50,000 @ 28%) 14,000.00

8. 1041 Federal Taxes October 3, 1999 to October 13, 2000 12,853.00

9. Administrative Expenses--Decedent's Estate 25,000.00

10. Funeral Expenses 7,000.00

11. Legal Fee--Preparation of Estate Tax Returns 7,000.00

12. Executor's Fees 7,000.00

13. Guardian's Annual Bond 4,000.00

TOTAL $366,792.00"

Of the 13 expenses listed in the analysis, Salvi admitted that item numbers 5,6, 9, 10, 11, and 12 (totaling $255,197) would not be expenses that the disabledperson's estate would have to pay, while item numbers 1, 2, 3, 4, 7, 8, and 13(totaling $111,595) were costs chargeable to the disabled person's estate. Salviadmitted that as of June 3, 1998, the guardian's checking account, whichcontained funds of $192,681.64, would have been sufficient to pay the expenseschargeable to Weiland's disabled person's estate.

E. The Trial Court's Rulings

The trial court concluded that account Nos. 4168, 4218, and 5723 wereTotten trusts. The court further determined that respondents failed to obtaincourt approval for revocation of account No. 5723 in violation of section 11a--18of the Probate Act (755 ILCS 5/11a--18 (West 1998)). The court held that accountNos. 4168 and 4218 were improperly revoked because respondents did notdemonstrate that there was a financial need for the funds contained in thoseaccounts as required by Judge Drew's order. The court ordered that the funds duethe beneficiaries be paid out of the estate.

II. ANALYSIS

On appeal, respondents raise four arguments. First, they claim that thetrial court used the wrong burden of proof in determining whether the disputedaccounts were Totten trusts. Second, respondents argue that the trial courterred in admitting the McCarthy letter as a business record. Third, respondentscontend that the claimants failed to prove that the disputed accounts were Tottentrusts. Finally, respondents assert that, assuming account Nos. 4168 and 4218were Totten trusts, they were properly liquidated pursuant to Judge Drew's order. We reach different results with respect to the three accounts in dispute. Wewill first address the status of account No. 5723. We will then turn ourattention to account Nos. 4168 and 4218.

A. Account No. 5723

Respondents claim that the trial court applied the wrong standard of proofin assessing the Baurhyte claim that account No. 5723 constituted a Totten trust. According to respondents, the claimants were required to prove that the accountwas a Totten trust by clear and convincing evidence, not by the preponderance-of-the-evidence standard applied by the trial court.

According to the Baurhyte claimants, registration of an account naming PODbeneficiaries raises the presumption that the decedent intended to create aTotten trust in favor of the named beneficiaries. Although no signed Tottentrust agreement for account No. 5723 was offered into evidence, the Baurhyteclaimants assert that "[i]ndepedent documentary evidence identifying account 5723as a totten [sic] trust account and naming the claimants as beneficiaries" wassufficient to raise the presumption that Weiland intended to create a POD trustin their favor.

Our research has not discovered any cases discussing the precise burden ofproof necessary to show that a decedent intended to create a POD account. However, it has been said that where a decedent, during his lifetime, executesan instrument creating a bank account in his or her own name as trustee foranother, there is a presumption that the decedent intended to create a payable-on-death trust in favor of the named beneficiary or beneficiaries. In re Estateof Petralia, 48 Ill. App. 2d 122, 136 (1964), aff'd, 32 Ill. 2d 134 (1965). Inthis respect, POD accounts are similar to joint-tenancy bank accounts (see In reEstate of Lewis, 193 Ill. App. 3d 316, 318 (1990) (noting that the presumptionof a gift arises from the creation of a joint-tenancy account)), and we findinstructive those cases discussing the standard of proof applicable to jointaccounts.

In Murgic v. Granite City Trust & Savings Bank, 31 Ill. 2d 587 (1964), oursupreme court discussed the burden of proof applicable to joint accounts. InMurgic, the court held that the creation of a joint-tenancy account creates apresumption of donative intent which may be overcome only by the presentation ofclear and convincing evidence by the opposing party that a gift was not intended. Murgic, 31 Ill. 2d at 590-91; see also In re Estate of Divine, 263 Ill. App. 3d799, 810-11 (1994); In re Estate of Roth, 96 Ill. App. 2d 292, 298-99 (1968). Instruments creating joint accounts are considered prima facie evidence ofdonative intent. Altieri v. Estate of Snyder, 262 Ill. App. 3d 427, 434 (1992). For this reason, in Murgic, Divine, and Roth the presumption of donative intentarose because the claimants presented evidence of an instrument signed by thedecedent expressing an intent to create a joint account. Murgic, 31 Ill. 2d at588; Divine, 263 Ill. App. 3d at 805-06; Roth, 96 Ill. App. 2d at 295. In casesin which the claimant is not aided by such a presumption, however, he must showdonative intent by clear and convincing evidence. This finding is consistentwith the longstanding principle that claims against an estate should bescrutinized with care and should not be allowed except on clear proof. In reEstate of Andernovics, 197 Ill. 2d 500, 508-09 (2001).

Given the fact that both joint accounts and POD accounts are governed bya presumption based on the existence of a written instrument evidencing theholder's intent, we believe that the standard of review applicable to joint bankaccounts should apply to POD accounts. In other words, a written instrumentexecuted by the holder expressing his or her intent to create a POD accountraises the presumption of the holder's intent, and such presumption may beovercome only by clear and convincing evidence. However, in the absence of awritten instrument executed by the holder, the claimant must show the holder'sintent to create a Totten trust by clear and convincing evidence. See In reEstate of La Pierre, 132 Ill. App. 2d 751, 754-55 (1971) (implying applicabilityof clear-and-convincing evidence standard in case involving whether account wasestablished as a Totten trust).

In this case, it was undisputed that Weiland entered into an agreement withLaSalle Bank or its predecessors to open an account. The dispute centered on thenature of the account and Weiland's intent. The presumption of a POD account didnot arise, however, because the Baurhyte claimants did not present evidence ofa written instrument executed by Weiland expressing her intent to create a PODaccount in their favor. As a result, they were required to prove their claim byclear and convincing evidence.

In deciding this case, the trial court wrote:

"The testimony of the bank employees concerning the reliability ofthe computer system and the routine procedures required to change computerdata convinces the courts [sic] by a preponderance of the evidence thatHelen Weiland did sign such a written agreement and although it was notproduced at trial the information contained in [the McCarthy letter]accurately and reliably indicates that on June 22, 1998 Account No. 5723was owned by Helen Weiland in the form of a pay-on-death account naming asafter death beneficiaries the *** claimants. The evidence is notsufficiently persuasive to meet a higher standard of proof." (Emphasisadded.)

The clear-and-convincing-evidence standard requires more proof than thepreponderance-of-the-evidence standard. In re Marriage of Knoche, 322 Ill. App.3d 297, 306 (2001); In re Estate of Blom, 234 Ill. App. 3d 517, 521 (1992)("Clear and convincing evidence is something less than beyond a reasonable doubt,but something more that a preponderance of the evidence"). As a result, we wouldordinarily remand the cause to the trial court for application of the properevidentiary standard. In re Estate of Ragen, 79 Ill. App. 3d 8, 14 (1979);Lazarus v. Pascucci, 74 Ill. App. 3d 633, 641 (1979). However, in this case thetrial court found that the evidence was insufficient to meet a standard of proofhigher than a preponderance of the evidence. Consequently, with respect toaccount No. 5723, we reverse the trial court and conclude that a remand isunnecessary.B. Account Nos. 4168 and 4218

1. Proper Standard of Review

Respondents also claim that the trial court improperly applied thepreponderance-of-the-evidence standard of proof in assessing the State's claimthat account Nos. 4168 and 4218 constituted Totten trusts. The State repliesthat respondents' argument is moot because the court also found that it provedby clear and convincing evidence that Weiland intended for account Nos. 4168 and4218 to be Totten trusts.

We previously determined that the proper standard of proof in determiningwhether a holder intended an account to be a Totten trust is clear and convincingevidence. At trial, the parties disputed the appropriate standard of proof. Thetrial court ultimately found that the standard of proof for establishing theintent to create a bank account as a POD account is a preponderance of theevidence. Nevertheless, in pronouncing its decision with respect to account Nos.4168 and 4218, the court concluded that the State "met both the preponderance-of-the-evidence standard and the clear-and-convincing-evidence standard of proofwhich the [respondents] argue[] should govern all elements of claims in probateestate proceedings." Accordingly, the trial court determined that the State hadsatisfied both burdens of proof. In light of the court's pronouncement, we agreewith the State that this issue is moot. See Marion Hospital Corp. v. IllinoisHealth Facilities Planning Board, 201 Ill. 2d 465, 475 (2002) (noting that anissue is rendered moot "when the resolution of a question of law cannot affectthe result of a case as to the parties"); La Salle National Bank, N.A. v. Cityof Lake Forest, 297 Ill. App. 3d 36, 43 (1998) ("An issue is moot when itsresolution could not have any practical effect on the existing controversy").

2. Admissibility of the McCarthy Letter

Respondents next claim that the trial court erred in admitting the McCarthyletter as a business record. Respondents suggest that the letter constitutedhearsay and cite three reasons why it does not fall within the business recordexception to the hearsay rule. See 145 Ill. 2d R. 236. More specifically,respondents contend that (1) the letter is not a memorandum or record of an eventor transaction, (2) the letter was not made at or within a reasonable time afterthe transaction, and (3) the letter was not kept in the regular course ofbusiness.

Supreme Court Rule 236 governs the admissibility of business records attrial. Rule 236(a) provides in relevant part:

"Any writing or record, whether in the form of any entry in a bookor otherwise, made as a memorandum or record of any act, transaction,occurrence, or event, shall be admissible as evidence of the act,transaction, occurrence, or event, if made in the regular course of anybusiness, and if it was the regular course of the business to make such amemorandum or record at the time of such an act, transaction, occurrence,or event or within a reasonable time thereafter. All other circumstancesof the making of the writing or record, including lack of personalknowledge by the entrant or maker, may be shown to affect its weight, butshall not affect its admissibility." 145 Ill. 2d R. 236(a).

Thus, Rule 236 requires only that the party tendering the record satisfy thefoundation requirement of demonstrating that the record was made in the regularcourse of business and at or near the time of the transaction. ProgressivePrinting Corp. v. Jane Byrne Political Committee, 235 Ill. App. 3d 292, 305(1992). A sufficient foundation for admitting records may be established throughtestimony of the custodian of records or another person familiar with thebusiness and its mode of operation. In re Estate of Savage, 259 Ill. App. 3d328, 333 (1994). A reviewing court will not disturb a trial court's decisionregarding the admissibility of business records absent an abuse of discretion. Ryan v. Mobil Oil Corp., 157 Ill. App. 3d 1069, 1081 (1987).

The disputed letter was prepared on July 8, 1997, by Lisa McCarthy, apersonal banker at LaSalle Bank. The letter identified 11 LaSalle Bank accountsbelonging to Weiland. The letter also listed the manner in which the accountswere held and the balance of each account. The letter indicated that accountNos. 4168, 4218, and 5723 each had POD beneficiaries.

Respondents first claim that the McCarthy letter was not admissible as abusiness record because it did not constitute a memorandum or record of an eventor a transaction. Rather, respondents contend that the letter was a "memorandumor a record of another memorandum or record" and constitutes double hearsay. Wedisagree. The event or occurrence set forth in the letter was not the creationof the 11 listed accounts, as respondents suggest. Instead, it was the status ofthose accounts as reflected in the bank's computerized records as of the date theletter was prepared. Moreover, even if respondent's characterization of theletter as "double hearsay" is correct, we find their argument unpersuasive. Respondents do not cite any authority for the proposition that "double hearsay"falls outside the ambit of Rule 236, and we find nothing in Rule 236 thatdisqualifies what respondents categorize as "double hearsay." See Amos v.Norfolk & Western Ry. Co., 191 Ill. App. 3d 637, 646 (1989). In fact, as theAmos court pointed out, Rule 236 expressly provides that lack of personalknowledge by the maker may affect the weight of the evidence but not itsadmissibility. Amos, 191 Ill. App. 3d at 646.

Respondents also claim that the letter was inadmissible under Rule 236because it was not made at or within a reasonable time after the transaction. Respondents note that the letter was prepared in July 1997, much later than theevents memorialized in the letter. Respondents correctly note that businessrecords sought to be admitted pursuant to Rule 236 must be prepared within areasonable time after the act or occurrence to which they relate. 145 Ill. 2dR. 236; Amos, 191 Ill. App. 3d at 646. This requirement was met here. As wenote above, the event or occurrence memorialized in the letter is the status ofthe 11 listed accounts as of the date the letter was prepared. McCarthytestified that she prepared the letter shortly after she gathered theinformation. Thus, the letter was prepared within a reasonable time after theevent or occurrence to which it relates.

Finally, respondents contend that the letter was inadmissible under Rule236 because the letter does not constitute a record kept in the regular courseof business. According to respondents, the letter was merely a response to thepublic guardian's request for information on the status of Weiland's accounts. We disagree.

McCarthy testified that, as a personal banker at LaSalle Bank, sheroutinely provided customers with information regarding their accounts. Ingathering such information, McCarthy normally relied on computer records and bankdocuments, including signature cards. McCarthy testified that, to the best ofher knowledge, the bank kept a copy of such requests and the bank's responsesthereto on file. According to McCarthy, the July 8, 1997, letter was preparedat her supervisor's direction and was in response to a request from Weiland'sthen guardian for information about Weiland's accounts. Although McCarthy couldnot recall whether she consulted the signature cards for each account inpreparing the letter, she stated that the information contained in the letter wasbased on the bank's computer records. McCarthy followed her supervisor'sinstruction and drafted the letter. Under such circumstances, we find that theletter was prepared in the regular course of business. We note that the factthat a record is made in response to a singular occurrence or event does notrequire a conclusion that it was not made in the regular course of business. TieSystems, Inc. v. Telcom Midwest, Inc., 203 Ill. App. 3d 142, 150 (1990); Birchv. Township of Drummer, 139 Ill. App. 3d 397, 407 (1985).

In sum, the McCarthy letter constituted a record of the status of Weiland'saccounts as reflected in the bank's computerized records as of the date theletter was prepared. Moreover, it was prepared in the regular course of business at or near the time of the transaction. Accordingly, the trial court did notabuse its discretion in admitting the letter.

C. Nature of Account Nos. 4168 and 4218

Respondents next claim that, in the absence of a signed agreementevidencing the creation of a Totten trust, specifically a signature card, thetestimony and documentary evidence elicited by the State was insufficient toestablish that Weiland intended account Nos. 4168 and 4218 to have PODbeneficiaries. The State does not dispute that it failed to discover or produceany documents signed by Weiland converting account Nos. 4168 and 4218 fromindividual accounts to Totten trusts. However, the State claims that itestablished the existence of two contracts evincing Weiland's intent to convertaccount Nos. 4168 and 4218 from individual accounts to Totten trusts.

We initially address whether the absence of a signature card signed byWeiland establishing a Totten trust, by itself, is sufficient to defeat theState's claim that Weiland intended to convert the disputed accounts to PODaccounts. Resolution of this issue requires us to interpret section 4 of theIllinois Trust and Payable on Death Accounts Act (Act) (205 ILCS 625/4 (West1998) (now, as amended, 205 ILCS 625/4 (West Supp. 2001))). The cardinal ruleof statutory construction is to ascertain and give effect to the intent of thelegislature. In re Ben S., 331 Ill. App. 3d 471, 472 (2002). The language usedby the legislature is the best indicator of the legislature's intent. Boylan v.Matejka, 331 Ill. App. 3d 96, 98 (2002). Where the language of a statute isunambiguous, it is given effect without resort to other aids of statutoryconstruction. Rolando v. Pence, 331 Ill. App. 3d 40, 44 (2002). Statutoryconstruction is a question of law subject to de novo review. Thompson v. Villageof Newark, 329 Ill. App. 3d 536, 539 (2002).

Section 4 of the Act provides in relevant part:

"If a person opening or holding an account signs an agreement withthe institution providing that on the death of the person designated as holder the account shall be paid to or held by another person or persons,the account, and any balance therein which exists from time to time, shallbe held as a payment on death account and unless otherwise agreed inwriting between the person opening or holding the account and theinstitution:

(a) The holder during his or her lifetime may change any of thedesignated persons to own the account at his or her death without theknowledge or consent of said designated persons by a written instrumentaccepted by the institution;

(b) The holder may make additional deposits to and withdraw any partor all of the account at any time without the knowledge or consent of thedesignated person or persons to own the account at his or her death,subject to the bylaws and regulations of the institution, and allwithdrawals shall constitute a revocation of the agreement as to theamount withdrawn; and

(c) Upon the death of the holder of the account, the person sodesignated to be the owner of the account who is then living shall be thesole owner of the account, unless more than one person is so designatedand then living in which case said persons shall hold the account in equalshares as tenants in common. If no such person designated as the owner ofthe account on the death of the holder is then living, the proceeds shallvest in the estate of the holder of the account." (Emphasis added.) 205ILCS 625/4 (West 1998).

Thus, the plain language of section 4 specifies that in order to establish theexistence of a POD account, a claimant must show that the holder of the accountexecuted a written agreement demonstrating his or her intent to have the proceedsof the account paid to a designated beneficiary or beneficiaries at the time ofthe holder's death. While section 4 of the Act requires a signed agreementevincing the intent of the holder to create a POD account, nothing in the Actspecifies the form that the agreement must take. Indeed, it is well establishedthat it is the intent of the account holder, not the form of the writtenagreement, that governs whether the holder intended to establish a POD account. See La Pierre, 132 Ill. App. 2d 751 (1971) (ultimately rejecting establishmentof POD account; although certificate of deposit expresses holder's intent tocreate POD account, holder failed to identify beneficiary of the account); Inre Estate of Waitkevich, 25 Ill. App. 3d 513 (1975) (suggesting that, even inabsence of signature card expressing holder's intent to create a POD account,testimony from bank employee that holder knew of nature of account would havebeen sufficient to establish Totten trust).

Accordingly, neither a signature card nor any other particular form ofwriting is required by the statute. Instead, the record must establish theexistence of a writing expressing the intent of the holder to establish a PODaccount. Consequently, we must determine whether, in this case, the State provedthe existence of a written agreement demonstrating Weiland's intent. As notedabove, the trial court concluded that the State met its burden in this respect. We will not disturb the trial court's findings of fact unless they are againstthe manifest weight of the evidence. In re Estate of Pohn, 67 Ill. App. 2d 227,234 (1966). In order for a finding to be against the manifest weight of theevidence, it must appear that a conclusion opposite to that reached by the trialcourt is clearly evident. Dayan v. McDonald's Corp., 125 Ill. App. 3d 972, 986(1984).

The State admits that it did not present a written document that expresslydemonstrated Weiland's intent to convert account Nos. 4168 and 4218 to PODaccounts. Instead, the State attempted to prove the existence of a writtenagreement demonstrating Weiland's intent to establish a POD account through thetestimony of current and former bank personnel as well as the presentation ofthose documents related to Weiland's accounts that the bank had archived. Onappeal, the State invokes the best-evidence rule to support its contention thatWeiland executed a written agreement demonstrating her intent to establishaccount Nos. 4168 and 4218 as POD accounts.

Under the best-evidence rule, the existence of a contract or other writingmay be proven by testimony or other indirect evidence when it is shown that theoriginal writing was lost, destroyed, or otherwise unavailable. People v.Barber, 116 Ill. App. 3d 767, 778 (1983); Electric Supply Corp. v. Osher, 105Ill. App. 3d 46, 48 (1982); see also People v. Baptist, 76 Ill. 2d 19, 26-27(1979). In such a case, the proponent must prove the prior existence of theoriginal, its unavailability, and the proponent's own diligence in attempting toprocure the original. Baptist, 76 Ill. 2d at 26; Electric Supply Corp., 105 Ill.App. 3d at 48-49. The sufficiency of the evidence showing that it is not withinthe offering party's power to produce the original depends upon the circumstancesof each case and is within the discretion of the trial court. Electric SupplyCorp., 105 Ill. App. 3d at 49. We find no abuse of discretion here.

Williams testified that Weiland signed two documents converting accountNos. 4168 and 4218 to Totten trusts. Williams could not remember the titles ofthe forms he completed to effectuate the change. However, he did indicate thatthe forms were either change-of-address forms or file-maintenance forms. Williams admitted that he did not complete a new signature card for eitheraccount. Bank personnel testified that in 1994 the bank did not have a change-of-address form. Instead, a file-maintenance form was used to request a changeof address. The testimony also revealed that file-maintenance forms were keptfor only one year before being discarded. The bank's keeper of records statedthat she provided copies of all signature cards, bank statements, and other bankrecords on file related to Weiland's accounts. Accordingly, the evidencesuggests the existence of a writing, its unavailability, and a diligent searchto procure the original document.

We also find that the evidence supports the trial court's finding thataccount Nos. 4168 and 4218 were Totten trusts. Respondents point out what theycategorize as credibility issues with Williams's testimony. For instance, theyclaim that Williams's testimony was discredited by evidence that suggested thathe had a pecuniary interest in having the Calvary Chapel named as a beneficiaryon Weiland's account because, as the senior pastor at the institution, his salarywould increase as the church "did well." Respondents also note that Williamsfailed to inform the bank of his relationship with Weiland and they questionWilliams's testimony regarding when he first approached Weiland and when theaddition of the beneficiaries was made. Furthermore, respondents question thereliability of the contents of the McCarthy letter.

However, it is the province of the trial court to judge the credibility ofthe witnesses, to determine the weight to be accorded their testimony, and todraw inferences from their testimony. Prairie Eye Center, Ltd. v. Butler, 329Ill. App. 3d 293, 299 (2002). The trial court found Williams's testimonycredible. As a reviewing court, we will overturn a trial court's factualfindings on appeal only if they are against the manifest weight of the evidence. Prairie Eye Center, 329 Ill. App. 3d at 299. In the present case, the trialcourt was aware of these alleged shortcomings in Williams's testimony. Nevertheless, the court found credible Williams's explanation of how Weilandadded POD beneficiaries to account Nos. 4168 and 4218. Williams testified that,after Weiland opened the two accounts, he realized that all of her other accountsat LaSalle Bank were held as POD accounts. Williams visited Weiland's home todiscuss the discrepancy between account Nos. 4168 and 4218 and the remainder ofWeiland's accounts. During a later visit, Weiland informed Williams that shewanted to add POD beneficiaries to account Nos. 4168 and 4218. Weiland handedWilliams a piece of paper indicating the names of the intended beneficiaries. In response, Williams prepared two forms for this purpose, obtained Weiland'ssignature on both documents, and forwarded them to the bank's central-processingfacility for input into the bank's computer. The McCarthy letter corroboratesWilliams's story and indicates that the changes were actually made. Based onthis evidence, we cannot say that the trial court's findings were against themanifest weight of the evidence.

Indeed, Williams's testimony was not contradicted by the testimony of anyother witness at trial. Nevertheless, respondents suggest that Williams couldhave altered the bank's computer records himself to convert the two accountswithout having obtained a signed document from Weiland. However, Williamstestified that in 1994 personal bankers were without the ability to input datainto the bank's computer system. Instead, bank employees would forward customerinformation to a central-processing facility for entry. Williams's testimony wascorroborated by McCarthy, Scardino, and Steiner, who stated that there was a timewhen they were not permitted to input data into the bank's computer system. Thetrial court found Williams's testimony on this issue credible. Based on theevidence presented at trial, we cannot say that the trial court's finding wasagainst the manifest weight of the evidence.

In fact, Williams's testimony was corroborated in another importantrespect. Williams testified that, if there was a problem with any forms, thefile-maintenance division would return them to be properly completed. Scardinotestified that in 1994, the bank required the customer to sign the file-maintenance form. Scardino's testimony suggests that the file-maintenancedivision likely considered Weiland's signature on the file-maintenance form tobe sufficient to substantiate her request to add POD beneficiaries to heraccounts.

Moreover, Williams's testimony was supported by the McCarthy letter and themonthly bank statements admitted into evidence. The McCarthy letter reflectedthat the disputed accounts contained POD beneficiaries. The bank statementsindicated that Weiland had completed the documents required to add PODbeneficiaries to her account as early as March 8, 1994, the closing date of thefirst monthly statement for one of the accounts. While Wanner admitted that thestatements were not the exact statements sent to Weiland, she stated that theyrepresented computer printouts of the records of LaSalle Bank as they existed atthe time they were generated for the litigation. Wanner also noted that theinformation used to produce both the computer printouts and the statements thatare mailed to the customer is the same, and that the same information is sent tothe customer.

Respondents also complain that the trial court ignored significant partsof Steiner's testimony regarding the "most likely" reason that the bank'scomputer records may conflict with a signed signature card. Steiner believedthat the most likely explanation for an inconsistency between the bank's computerrecords and the signature card is that "someone changed them." However, there wasother evidence to explain the discrepancy. Steiner herself admitted that thedocumentation needed to effectuate such a change could have been destroyed orlost. Further, Williams's testimony also provided an explanation for thediscrepancy. The trial court found Williams believable. We will reverse thejudgment of the trial court only when its decision is contrary to the manifestweight of the evidence, not when the evidence is merely conflicting. WencordicEnterprises, Inc. v. Berenson, 158 Ill. App. 3d 913, 918 (1987).

In short, the trial court's finding that Weiland intended to add PODbeneficiaries to account Nos. 4168 and 4218 is supported by Williams'suncontradicted testimony that Weiland signed documents expressing her intent toestablish Totten trusts, testimony that the addition of the beneficiaries wouldnot have been completed without the proper documentation, and bank recordsdemonstrating that POD beneficiaries had been added to the accounts. Accordingly, we affirm the trial court's finding that account Nos. 4168 and 4218constituted Totten trusts.D. Liquidation

Finally, respondents argue that, even if the trial court properlydetermined that account Nos. 4168 and 4218 constituted Totten trusts, the courterred in concluding that the accounts were improperly liquidated. According torespondents, Judge Drew's June 1998 order authorized the guardian to liquidatethe trusts in order to meet the estimated expenses of the disabled persons'sestate and the decedent's estate.

Ordinarily, the owner of a POD account may revoke the account at any timeduring his or her lifetime. 205 ILCS 625/4 (West 1998); Cotton v. First StateBank of Mendota, 182 Ill. App. 3d 400, 402-03 (1989). However, the power torevoke a POD account does not automatically transfer to the account holder'sguardian upon the holder's disability. Once a guardian is appointed for theholder, a court order is required to revoke a POD account. 755 ILCS 5/11a--18(d)(West 1998). In this regard, section 11a--18(d) of the Probate Act (755 ILCS5/11a--18 (West 1998)) provides in relevant part:

"Adjudication of disability shall not revoke or otherwise terminatea trust which is revocable by the ward. A guardian of the estate shallhave no authority to revoke a trust that is revocable by the ward, exceptthat the court may authorize a guardian to revoke a Totten trust orsimilar deposit or withdrawable capital account in trust to the extentnecessary to provide funds for the purposes specified in paragraph (a) ofthis Section." 755 ILCS 5/11a--18(d) (West 1998).

Section 11a--18(a) of the Probate Act (755 ILCS 5/11a--18(a) (West 1998))provides:

"To the extent specified in the order establishing the guardianship,the guardian of the estate shall have the care, management and investmentof the estate, shall manage the estate frugally and shall apply the incomeand principal of the estate so far as necessary for the comfort andsuitable support and education of the ward, his minor and adult dependentchildren, and persons related by blood or marriage who are dependent uponor entitled to support from him, or for any other purpose which the courtdeems to be for the best interests of the ward, and the court may approvethe making on behalf of the ward of such agreements as the courtdetermines to be for the ward's best interests." 755 ILCS 5/11a--18(a)(West 1998).

In this case, Weiland's guardian petitioned the court for an orderauthorizing revocation of the 11 POD accounts held in Weiland's name at LaSalleBank. In response to the guardian's petition, the trial court issued thefollowing order:

"IT IS FURTHER ORDERED that the guardian of the estate is authorizedto amend or revoke the Totten Trusts set forth in the petition to theextent necessary to provide increased income to the estate and to providefunds necessary for the care, management and investment of the estate,protective of any beneficiary contingent interest as much as is reasonablypossible considering the needs and best interests of the ward pursuant to765 ILCS 5/11a-18(d) while preserving the interests of the beneficiariesby accounting of the guardian."

The evidence in this case established that the guardian liquidated POD accountsto meet the estimated expenses of Weiland's decedent estate at a time when shewas still alive and under a disability. However, nothing in the order authorizedthe guardian to use the ward's funds for expenses associated with the ward'sdecedent's estate.

In fact, Salvi admitted that the money available in Weiland's checkingaccount at the time the petition was filed would have been more than sufficientto meet the estimated expenses of Weiland's disabled person's estate. At thetime the petition was filed, Salvi anticipated expenses of $366,792 in theforthcoming year. However, Salvi admitted that his estimate included $255,197in costs not properly chargeable to the disabled person's estate, but instead tothe decedent's estate. Salvi further acknowledged that the $192,682 in Weiland'schecking account would have been sufficient to cover the expenses chargeable toWeiland's disabled person's estate. Consequently, the funds liquidated from thePOD accounts at LaSalle Bank were not necessary for the care, management, andinvestment of Weiland's disabled person's estate. Thus, the liquidation of thetwo disputed accounts violated Judge Drew's order.

While the Act does allow the guardian to petition the court for estateplanning purposes (755 ILCS 5/11a--18(a--5) (West 1998)), Salvi did not petitionthe court under this provision. In any event, the testimony suggests that Salviintended the funds in these accounts to cover the liability for the estimatedtaxes rather than using the funds as an estate planning tool to minimize suchtaxes.

Consequently, we conclude that the liquidation of account Nos. 4168 and4218 was improper. Having determined that the revocation of the POD accounts wasimproper, we find that the trial court also correctly ruled that the proceeds ofthe accounts should be paid to the charitable beneficiaries out of Weiland'sestate.III. CONCLUSION

For the aforementioned reasons, the judgment of the circuit court of LakeCounty with respect to account No. 5723 is reversed. However, the court'sjudgment with respect to account Nos. 4168 and 4218 is affirmed.

Affirmed in part and reversed in part.

BOWMAN and KAPALA, JJ., concur.