In re Estate of Shea

SUPREME COURT CASES

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State: Illinois

Court: Illinois Southern District Court

Docket No: 2050600

Case Date: 04/28/2006

Preview: No. 2--05--0600 filed 4/28/06
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

In re ESTATE OF ROBERT D. SHEA,)  Appeal from the Circuit Court
Deceased  )  of Du Page County.
)
)  No. 03--P--502
(Edward J. Shea, as Ex'r of the Estate of   )
Robert D. Shea, Deceased, Petitioner- )  Honorable
Appellee, v. Mary Brennan, Respondent- )  Kenneth L. Popejoy,
Appellant (William Brennan, Respondent)).  )  Judge, Presiding.

JUSTICE O'MALLEY delivered the opinion of the court:
Respondent, Mary Brennan, appeals an order ruling that two bank accounts, on which she was listed as a joint tenant with decedent, Robert D. Shea, belong to decedent's estate.  Her principal contention is that the court erred in making that finding when petitioner (Edward J. Shea, executor of decedent's estate) failed to show that decedent did not intend to make a gift to respondent effective as of his death. Under Murgic v. Granite City Trust & Savings Bank, 31 Ill. 2d 587 (1964), a court must presume that when a bank account holder lists another person as a joint tenant on the account, he or she intends to make a gift of a joint tenancy interest in the account to that person.  We hold that a party rebuts the presumption by showing by clear and convincing evidence that the account holder did not intend a present gift.  We therefore conclude that the court was correct to find that petitioner rebutted the Murgic presumption of a gift.  Once a party claiming an account has rebutted the presumption, it must still show entitlement to that account by the preponderance of the evidence. Because petitioner presented substantial evidence that  decedent intended the accounts to be convenience accounts, but respondent presented only minimal evidence that decedent intended her to have the accounts, we hold that the court was correct to rule that the accounts are the estate's. We therefore affirm its judgment.
At the outset, we must decide what evidence we may consider in reviewing this case.  We deem to be a part of the evidence a collection of exhibits that petitioner filed as an attachment to his memorandum of law in support of his petition for a citation to recover assets against respondent. The record as a whole convinces us that the court considered this collection, or at least some individual exhibits, as evidence despite never having formally admitted any of the exhibits at the evidentiary hearing. Nevertheless, neither party protested the court's use of these exhibits either below or on appeal; in fact, both cite certain exhibits extensively in their appellate briefs.  Obviously, the parties have waived any possible claim of error based on the court's use of the exhibits.  188 Ill. 2d R. 341(e)(7). However, we note to the court and parties that they would have simplified our review had they followed established patterns for admitting evidence.
BACKGROUND
Decedent died on April 11, 2003. His wife had predeceased him, dying on March 7, 2002, and he was survived only by petitioner, his brother. Petitioner became decedent's executor on the death of Mildred Doyle, his original executor.  Petitioner petitioned the court to issue a citation to recover assets against respondent, who was named with decedent as joint tenant of two bank accounts, one checking and one savings. He alleged that she was in a fiduciary relationship with decedent, as trustee of a trust decedent created for his own benefit, so she had the burden to prove that any gift from decedent to her was not the result of undue influence. Further, he alleged that decedent had intended the accounts to be convenience accounts and had never intended respondent to have the funds on his death.
Petitioner filed a memorandum of law in support of the petition, to which he attached the collection of exhibits discussed above. These included a transcript of petitioner's deposition of respondent and copies of a check register. In the transcript, respondent asserted that she believed that the money in the accounts was to become hers when decedent died. She said that her belief was based on the legal effect of the joint tenancy. However, when petitioner asked her if, had she wanted, she could have spent all the money in the accounts in 2002 because it was a joint tenancy, she said that she could have.  Respondent told petitioner that the savings account contained approximately $30,000.  According to the check register, during decedent's life, respondent made one withdrawal from that account, transferring $1,000 to the checking account.
The court granted the petition and issued the citation.  At the beginning of the evidentiary hearing on the citation, respondent stipulated that she had not paid gift tax on the money in the two accounts that she held in joint tenancy with decedent, nor had she filed a gift tax return reporting her receipt of the money.
John Doyle, Mildred Doyle's son, testified for the estate.  He said that his family and the Sheas had a close relationship and that he knew respondent and her husband as the Sheas' neighbors.  He recalled a conversation between his mother and decedent that took place the April, May, or June after decedent's wife died (that is, in 2002). Decedent told Mildred that he needed to have someone "to be put on the accounts" to pay his bills if he could not, but Mildred told decedent that her health was not good enough to take on the responsibility.
J. Scott Marsik also testified for the estate.  He met decedent when they were coworkers at a real

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