In re Estate of Sloan

2020 IL App (5th) 190307-U

• Court: Appellate Court of Illinois
• Decided: June 24, 2020
• Docket: 5-19-0307
• Status: Unpublished

Opinion

NOTICE 2020 IL App (5th) 190307-U NOTICE Decision filed 06/24/20. The This order was filed under text of this decision may be NO. 5-19-0307 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Peti ion for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

In re ESTATE OF DEWEY R. SLOAN, Deceased ) Appeal from the ) Circuit Court of (Jerry Leaf and David Leaf, as co-administrators of ) Richland County. the Estate of Dewey R. Sloan, Petitioners-Appellees, ) v. Thomas Sloan, Respondent-Appellant). ) No. 07-P-19 ) ) Honorable ) Larry D. Dunn, ) Judge, presiding. ________________________________________________________________________

JUSTICE BOIE delivered the judgment of the court. Justices Moore and Overstreet concurred in the judgment.

ORDER

¶1 Held: In a probate case where the decedent’s nephew served as the decedent’s power of attorney and opened a joint bank account with the decedent’s funds, naming himself as a joint owner with right of survivorship of the bank account, the co-administrators’ citation to recover funds that the nephew withdrew from the account was not untimely under the five-year statute of limitations set out in section 13-205 of the Code of Civil Procedure (735 ILCS 5/13-205 (West 2006)). The trial court’s finding that the nephew failed to overcome the presumption of fraud with respect to the funds he withdrew from the bank account was not against the manifest weight of the evidence. The circuit court properly ordered the nephew to pay the funds back to the decedent’s estate.

¶2 The petitioners, Jerry Leaf and David Leaf, are the co-administrators of the estate

of Dewey R. Sloan (Rex). They brought a citation proceeding against the respondent,

1 Thomas Sloan (Tom), first seeking information with respect to financial transactions that

took place during Rex’s lifetime that were made by Tom as Rex’s power of attorney. The

co-administrators later sought recovery of funds from Tom that they claimed Tom

obtained from Rex in violation of the fiduciary duty Tom owed to Rex. The circuit court

entered an order directing Tom to reimburse Rex’s estate a total of $71,817.67 for funds

Tom withdrew out of a joint bank account that was funded with Rex’s money. The circuit

court also ordered Tom to reimburse the estate $22,815 for attorney fees and $2265.87

for costs incurred by the co-executors in bringing the citation to recover the funds. Tom

now appeals the circuit court’s judgment. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 This case presents a common probate scenario involving an estate’s attempt to

obtain the return of estate property alleged to be wrongfully concealed or controlled by

another person. In the lower court proceedings, the co-administrators sought to recover

Rex’s funds that, the co-administrators maintained, Tom gained during Rex’s lifetime as

a result of Tom’s breach of the fiduciary duty he owed to Rex as Rex’s power of attorney.

Although the lower court proceeding involved several financial transactions, on appeal,

the parties’ dispute has been narrowed in focus to only certain funds that Tom withdrew

from a joint bank account (Trust Bank account) that Tom had with Rex. The Trust Bank

account was funded with Rex’s money and was established after Tom became Rex’s

power of attorney. The co-administrators maintained, and the trial court agreed, that

Tom’s withdrawals of funds form the Trust Bank account constituted a breach of the

fiduciary duty Tom owed to Rex and that Tom must reimburse the estate for these funds. 2 Our background discussion will focus only on those facts in the record that are necessary

for understanding the dispute surrounding the withdrawals of funds from the Trust Bank

account. We begin our background discussion with a description of Rex’s life in the years

before he died, including the circumstances surrounding the establishment of the Trust

Bank account.

¶5 A. Facts Leading Up to the Lower Court’s Probate Proceedings

¶6 Rex was born in January 1926. He had four siblings, William Sloan (Bill), Orpha

Vail, Lora Grace Leaf (Grace), and a brother who died during WWII. Rex never married

or had children. Rex’s siblings passed away before Rex. He had 13 nieces and nephews

who were the children of Bill, Orpha, and Grace. The co-administrators are the sons of

Grace. Tom is the son of Bill.

¶7 During his lifetime, Rex served in the Navy and worked as a carpenter after his

service in the Navy. He resided in Florida for many years. In 2001, Rex owned two small

residences in Florida, a motorcycle, a Jeep, and several bank accounts and investment

accounts that were located in Florida.

¶8 In 2001, when Rex was 77 years old and when Rex’s brother Bill was still alive,

Bill received a telephone call from the Memphis, Tennessee, police department who

informed Bill that Rex had been found in Memphis and was confused and lost. According

to Tom, Rex was traveling to Illinois and stopped at a motorcycle shop in Memphis and

merely “overdid himself and was tired.” According to Tom’s sister, Janet Smallwood, the

police had found Rex naked in Memphis and not knowing where he was.

3 ¶9 Bill and Tom drove to Memphis and brought Rex to Illinois. Rex later returned to

his residence in Florida. However, according to Janet, when they took Rex back to

Florida, Tom knew that Rex would not be living there long because Rex needed full-time

guidance and was not in good shape mentally. Janet observed that Rex was very confused

when he was brought to Illinois from Memphis and did not know his brother Bill.

¶ 10 In July 2001, all of Rex’s assets were in Florida and were in Rex’s name alone.

Tom took Rex to an attorney, Tom Weber, who prepared a will and a power of attorney

for healthcare and property for Rex. On July 17, 2001, Rex executed the power of

attorney for healthcare and property, appointing Tom as his agent. On the same day, Rex

also executed a will that left one-third of his estate to Bill and one-third each to the

families of Orpha and Grace.

¶ 11 Attorney Weber testified that, prior to Rex signing the power of attorney and the

will, Weber assessed Rex’s competency to sign the documents to Weber’s satisfaction.

According to Weber, Rex was able to describe the nature and extent of his estate and give

Weber instructions concerning how Rex wanted his estate distributed upon his death. Rex

stated that he had two houses in Florida and approximately $150,000 in assets that need

to be distributed. According to Weber, Rex wanted one-third of his estate to go to Bill,

who was still alive at the time, one-third to Orpha’s decedents, and one-third to Grace’s

decedents.

¶ 12 After becoming Rex’s power of attorney, Tom began managing Rex’s finances

and investments. In a letter dated August 24, 2001, Tom informed Rex’s financial advisor

in Florida, Gerald Cohen, that Rex had appointed Tom as Rex’s power of attorney for his 4 finances. Tom told Cohen that due to Rex’s “health condition,” all transactions involving

Rex’s account “must be authorized” by Tom. Tom requested a detailed and itemized

statement of all transactions from Rex’s account with Cohen from the time it was

established to the date of the letter. When asked about this letter, Tom testified that,

despite the content of the letter, he believed Rex was capable of handling his own

finances when he wrote the letter. When asked about the health concerns stated in the

letter, he testified that he believed that Rex’s epileptic medications were confusing Rex.

¶ 13 The record establishes that, sometime before 2001, Rex had been diagnosed with

some level of dementia and Alzheimer’s disease. The record is conflicting with respect to

the extent Rex suffered from the symptoms from these conditions and whether he was

competent to handle his own financial affairs as a result. The circuit court resolved this

factual dispute by finding that Rex was competent when he executed the power of

attorney in July 2001, naming Tom as his agent. The circuit court also found as follows:

“Rex is also presumed to have been competent throughout his remaining lifetime,

including when the various transactions in question occurred.” On appeal, no one has

challenged this factual finding. Accordingly, for purposes of this appeal, Rex is deemed

to have been competent until the time of his death. In this background section, we will

highlight only some of the evidence in the record relevant to Rex’s mental competence

for purposes of understanding the circumstances leading up to the transactions at issue,

not to challenge or question the circuit court’s factual finding. 1

1 For example, the record includes testimony from one of Rex’s doctors who opined that, in February 2006, Rex was unable to manage his own assets and property and that Rex would have lacked 5 ¶ 14 Around March 18, 2002, while Rex was still living in Florida, Tom received a call

from someone at a Florida hospital who informed Tom that Rex had been admitted to the

hospital. Tom and his sister, Shirley Atkins, flew to Florida. When asked why Rex was

the hospital, Tom testified that Rex was just dehydrated. Shirley, however, testified that,

at the hospital, Rex was very confused and that the hospital staff had to tie Rex to his

hospital bed. Shirley observed that Rex was in an extremely dirty physical condition

because Rex had not showered in a long time.

¶ 15 At the hospital, Tom cleaned and bathed Rex. Shirley and Tom went to Rex’s

house and discovered it in a filthy condition with not much food available. According to

Shirley, Rex stayed in the hospital a few days, and when he was released, he was too

confused to be left alone at his home in Florida. Therefore, they decided to bring Rex

back to live near them in Olney, Illinois.

¶ 16 The record indicates that when Rex was brought to Illinois, he lived at Bill’s house

for a short period of time until April 2002, when Tom moved Rex into Mary Burgin’s

boarding home in Olney. Documents admitted into evidence established that the cost for

Rex to live at the boarding home was $2000 per month. The $2000 per month included

room and board, laundry services, three meals a day, phone service, and emergency

transportation services.

that capacity for at least two to three years prior to that time period. The circuit court, however, apparently gave little weight to the doctor’s opinion, finding that Rex remained competent until the day of his death. We need not discuss the doctor’s opinion as the factual questions surrounding Rex’s competency are not at issue on appeal. 6 ¶ 17 On March 26, 2002, Tom opened the Trust Bank account that lies at the center of

this appeal. The account was held jointly in Tom’s and Rex’s names with rights of

survivorship. The record on appeal includes the documents associated with this account

that Trust Bank kept in its files. Trust Bank’s documents included a copy of the power of

attorney and the account application. Rex’s signature does not appear anywhere on the

account application documents. The Trust Bank account application contained Tom’s

address and phone number and his signature as Rex’s power of attorney with respect to a

“backup withholding certification.” Tom testified that he set up this account for

convenience purposes in handling Rex’s finances. Specifically, he stated that the Trust

Bank account was for record-keeping purposes, and he agreed that the funds in the

account belonged to Rex and were to be spent only for Rex’s benefit.

¶ 18 Sometime in 2002, Tom introduced Rex to a certified financial planner, David

Lobacz. Lobacz did not know anything about Rex’s medical history. However, according

to Lobacz, because of Rex’s advanced age, Lobacz asked Rex questions designed to

make sure Rex was coherent when they talked about financial matters. Lobacz did not

witness any kind of dementia symptoms or incoherence when he spoke with Rex about

his investments. According to Lobacz, no transactions involving Rex’s investments were

directed by Tom. Lobacz recalled that all directions with respect to investments came

from Rex himself.

¶ 19 Transactions involving Rex’s investments made by Lobacz were challenged by

the co-administrators in the lower court’s citation proceeding. However, these

transactions are no longer at issue in this appeal. Accordingly, for purposes of this appeal, 7 it is sufficient to note that Lobacz arranged for the transfer of Rex’s financial assets into

the Trust Bank account where the funds were temporarily held until they were transferred

from the Trust Bank account into various investments at Lobacz’s direction.

¶ 20 The largest portion of Rex’s financial assets was his individual retirement account

(IRA) that had a balance of $140,403.37 around the time Lobacz began managing Rex’s

investments. Due to Rex’s age, he was required to take disbursements from the IRA. The

IRA disbursements were set up to be annual disbursements that went directly into the

Trust Bank account. Lobacz was not involved with paying Rex’s living expenses or his

day-to-day needs. Therefore, Lobacz had no knowledge of how Tom used any of the

annual IRA disbursements or other income that was deposited into the Trust Bank

account.

¶ 21 From April 2002 through May 2003, Tom wrote 15 checks on the Trust Bank

account that resulted in Tom receiving $9093.44 in cash from the account or funds from

the account being deposited into Tom’s personal or business bank accounts.

¶ 22 On June 26, 2003, Tom moved Rex from Mary Burgin’s boarding home to an

assisted living facility, Emerald Glen. Emerald Glen provided a higher level of assistance

for its residents than the assistance Mary Burgin’s boarding home offered for its

residents. Tom testified that he moved Rex from the boarding home because Emerald

Glen was less expensive.

¶ 23 As part of the admission process at Emerald Glen, the nursing staff at the facility

prepared a report titled “Resident Assessment Instrument.” This report noted that Rex’s

cognitive skills for daily decision making was “moderately impaired.” With respect to 8 how Rex managed cash and finances, the report stated that Rex was “not involved at all

in performing” these activities. Another report prepared by Emerald Glen’s nursing staff

stated, among other things, that Rex needed assistance with money transactions and that,

with respect to “financial matters, Rex “[n]eed[ed] supervision with every transaction and

family/and POA [was] available to assist.”

¶ 24 On October 14, 2003, the director of Emerald Glen involuntarily discharged Rex

from the facility because Rex was urinating in inappropriate places, including the corner

of the common space of the facility and sometimes in plants. Rex also came out of his

room naked on several occasions. Accordingly, the director of Emerald Glen determined

that Rex had to be removed from the facility. The director explained that Rex’s mental

condition had progressed to the point that the facility was no longer appropriate for him.

The director also stated that Rex was a little more confused than Tom had told her when

she accepted Rex into the facility. The director agreed that while Rex resided at Emerald

Glen, Tom visited Rex two or three times per week and took Rex out of the facility

maybe once per week.

¶ 25 After being discharged from Emerald Glen, Tom moved Rex back to Mary

Burgin’s boarding home. According to Tom, no one told him that Rex ever misbehaved

at Mary Burgin’s boarding home. Tom also explained that Rex had not wanted to move

to Emerald Glen and was happy when he returned to the boarding home. During the time

Rex lived at Emerald Glen, Tom wrote two checks on the Trust Bank account that

resulted in Tom receiving $400 from the account.

9 ¶ 26 At some point after Rex returned to the boarding home, Tom reported to Lobacz

that Rex’s condition was worsening. In a report dated April 17, 2004, Lobacz wrote that

Tom had told Lobacz that Rex’s condition was worsening “to the point that he felt we

should move more money out of the estate.” Lobacz testified that the plan was to move

money out of Rex’s name so that if the State of Illinois had to start paying for Rex’s care,

the State could not access any of Rex’s investments. Therefore, Lobacz began

transferring ownership of a large portion of Rex’s investments into Tom’s name alone.

¶ 27 As stated above, the co-administrators challenged Lobacz’s transfer of ownership

of Rex’s investments to Tom while Rex was alive. The circuit court, however, found that

none of these transfers were initiated by or made at the direction of Tom as Rex’s power

of attorney but were undertaken with Rex’s approval. The circuit court, therefore, denied

the co-administrators any relief with respect to investments and transfers made by

Lobacz, and, as indicated above, those transfers are not at issue on appeal.

Parenthetically, we note that the transfers left Rex with approximately $24,000 in

investments in his name alone that, on his death, were distributed outside of the estate in

accordance with the beneficiary designations on the account.

¶ 28 Rex died on August 19, 2006, while still living at Burgin’s boarding home. His

death certificate stated that the cause of his death was “Alzheimer’s.” For a period

beginning when Rex moved back to the boarding home until his death, Tom wrote 13

checks on the Trust Bank account resulting in $70,950 of funds from the Trust Bank

account going to Tom in the form of cash or deposits into Tom’s personal or business

bank accounts. Two days after Rex died, Tom wrote a $700 check to himself on the Trust 10 Bank account. Tom closed the account on September 19, 2007, by withdrawing the last

$158.53 that remained in the account.

¶ 29 B. The Lower Court’s Probate Proceedings

¶ 30 In his will, Rex had designated Tom to be the executor of his estate. However,

when no one filed Rex’s will or otherwise opened an estate, one of Rex’s other nephews,

John Leaf, who was one of Grace’s sons, filed a petition to probate Rex’s will and for the

appointment of his two brothers, Jerry and David Leaf, to serve as co-administrators.

Tom then filed a petition for the appointment of himself as the administrator.

¶ 31 The Leaf brothers objected to Tom serving as the administrator of the estate. They

believed that Tom, as Rex’s agent, had concealed, converted, or had in his possession or

control, property belonging to Rex’s estate. The Leafs stated their intent to pursue a

citation proceeding against Tom and argued, therefore, that Tom had a conflict of interest

and could not serve as the estate’s administrator. After an evidentiary hearing, on May

30, 2007, the circuit court entered an order admitting Rex’s will to probate and

appointing Jerry Leaf and David Leaf as co-administrators of the Rex’s estate.

¶ 32 On July 24, 2007, the co-administrators filed a citation to discover information

directed at Tom pursuant to section 16-1 of the Probate Act of 1975 (Probate Act) (755

ILCS 5/16-1 (West 2006)). The co-administrators sought information concerning Tom’s

handling of Rex’s finances while Tom acted as Rex’s power of attorney. The co-

administrators also filed a citation to discover information directed at Lobacz and a

citation for information directed at Trust Bank.

11 ¶ 33 On May 12, 2008, the circuit court conducted the Trust Bank citation hearing. At

the hearing, Trust Bank’s president and CEO, Bruise A. Runyon, testified about the

opening of the Trust Bank account. The circuit court admitted into evidence the

documents Tom signed in opening the account and the monthly statements for the bank

account from the date it was opened until it was closed.

¶ 34 The record indicates that, after the Trust Bank citation hearing, nothing happened

in the circuit court for over four years. On December 12, 2012, Tom filed a motion

requesting the circuit court to enter an order closing the case for lack of prosecution. In

response, the co-administrators alleged that they had obtained medical records and a

report from Rex’s treating physician and had requested a supplement to the treating

physician’s report. In addition, the co-administrators alleged that they had received and

reviewed numerous records from Trust Bank, that they were interviewing witnesses, and

that the citations were still pending with respect to Tom and Lobacz and would be set for

hearing in the near future. On December 17, 2012, the circuit court denied Tom’s motion

to close the case and scheduled hearings on the pending citations.

¶ 35 On March 20, 2013, the circuit court conducted the Lobacz citation hearing.

Lobacz testified about his handling Rex’s investments beginning in 2002. The circuit

court admitted numerous documents, including letters and account statements, pertaining

to Lobacz’s handling of Rex’s investment. As noted above, the investments that Lobacz

managed for Rex are no longer at issue in this case.

¶ 36 Following the Lobacz citation hearing, Tom filed a motion to strike the citation

proceeding against himself alleging that Lobacz’s testimony “established conclusively 12 that none of the assets which were the subject matter of that proceeding were in any way

unduly influenced by [Tom] nor is there any basis for turning over said assets.”

¶ 37 On May 8, 2013, the parties appeared in court for a hearing on the citation to

discover information directed at Tom and for a hearing on Tom’s motion to strike the

citation. In arguing the motion to strike, Tom asserted that there was no petition alleging

that he had estate assets and no allegations of undue influence and that he could not

defend against a citation when there were no allegations directed at him.

¶ 38 In response, the co-administrators argued that there was a petition for citation

pending with respect to Tom and that it had been pending since it was filed in July 2007.

They argued that they were “now ready to proceed with this citation against [Tom] to

discover what information or assets he may have in his possession,” and that their inquiry

was not limited to the investment accounts Lobacz handled. They concluded, “so today

we’re ready to proceed with the citation with [Tom] to attempt to either locate

information or assets or try to tie down assets that we believe [Tom], as agent under the

Power of Attorney, transferred improperly to himself.”

¶ 39 In reply, Tom argued that the co-administrators had his responses to

interrogatories and requests for production of documents stemming from the pending

citation for information for several years and had not requested any further information.

Tom argued that it seemed “kind of late to be doing a fishing trip based on information

they had six years ago.” The co-administrators, however, maintained that the pleadings

on file were sufficient to recover information or assets from Tom.

13 ¶ 40 The circuit court noted that the citation with respect to Lobacz was fulfilled in

March 2013 but there had not been a full citation hearing with regard to whether Tom had

any estate assets or information relevant to the petition for citation. The circuit court also

observed, however, that the co-administrators had filed a request for a citation for

information but that no citation had ever been issued. The circuit court noted that the co-

administrators’ prayer for relief in the citation for information was that Tom be ordered to

provide information. The circuit court, therefore, stated that it was prepared to go forward

with the citation hearing if co-administrators stipulated that they were not seeking

property at the hearing, that the hearing was only for discovery purposes, and that the co-

administrators would file a separate pleading for the recovery of property.

¶ 41 The parties agreed to proceed with the May 8, 2013, hearing as a discovery

citation proceeding and not a proceeding for the recovery any estate property at that time.

In a docket entry, the circuit court wrote that Tom’s motion to strike was withdrawn as

moot “in light of fact that parties and counsel stipulate that Thomas (‘Tom’) Sloan will

testify today in/as to a discovery information proceeding but no recovery/return will be

ordered this date.”

¶ 42 At the hearing, the co-administrators’ attorneys asked Tom questions about his

handling of Rex’s finances as Rex’s power of attorney and, particularly relevant to this

appeal, questions about checks Tom wrote on the Trust Bank account that resulted in

funds from the Trust Bank account going to Tom. Tom testified that the Trust Bank

account “was primarily set up for Rex” and agreed that his (Tom’s) “name was on [the

account] simply as a convenience” and for Rex’s benefit. He agreed that when he opened 14 the account, he intended for the account to be Rex’s account. He testified that he opened

the account as a joint account because that was what Rex wanted.

¶ 43 Tom testified that all of the money that was withdrawn from the Trust Bank

account was spent for Rex’s benefit. When asked whether he could produce receipts or

other proof that the money was spent for Rex, Tom replied “probably.” Tom added, “I

might be able to, I might not. I don’t know.” At one point during questioning, Tom told

one of the co-administrators’ attorneys that he did not want to provide them with any

documents and that the attorneys were “always twisting and turning things around.” In

addition, Tom answered many of the co-administrators’ questions with statements such as

“I don’t recall,” “I don’t remember,” “It could have been ***,” “I could have ***,” “I’m

not for sure.”

¶ 44 Tom testified that when Rex died, there was not enough money in the Trust Bank

account to cover Rex’s funeral expenses. Tom also testified that he deposited $17,000 of

his own money back into the Trust Bank account after Rex died so that there would be

some money to distribute to Rex’s other nieces and nephews. He testified that he put this

money into the account so that it appeared that Rex had left them something under the

will although the Trust Bank account had been depleted. Tom gave each cousin a check

for $2500 from the Trust Bank account.

¶ 45 Tom also testified that he sold Rex’s Jeep and motorcycle as Rex’s power of

attorney and that he “probably” deposited those funds into the Trust Bank account.

However, he was not sure that he did deposit the proceeds into the Trust Bank account

and he also could not produce any documents to show what happened to the proceeds. 15 ¶ 46 At the conclusion of the co-administrators’ examination of Tom, the co-

administrators asked the circuit court to require Tom to produce any documents he had

with respect to the sale of Rex’s real estate, the sale of Rex’s Jeep and motorcycle, any

life insurance policies on Rex’s life, and any information Tom had with respect to the

financial accounts Rex had in any Florida financial institution. Tom’s attorney asked that

the request be put in writing and stated that they would respond within 21 days.

¶ 47 The circuit court asked the attorneys about “further scheduling,” stating, “I don’t

know what further scheduling you all were going to ask for, if there was anything else.”

After a discussion off the record, the court stated on the record that the “discovery

citation” directed at Tom was concluded. One of co-administrators’ attorneys suggested,

“perhaps we can either do a file to the court or a status hearing to see if there’s a next step

to be initiated as a result of this discovery proceeding and the documents that Tom Sloan

provides us, because we don’t want to let this languish like it has been.” The attorney

stated that once the documents were provided, he anticipated “then proceeding with the

filing of this recovery action next, once we have that other documentation.”

¶ 48 The circuit court held a status hearing on June 17, 2013. Tom’s attorney stated that

Tom had provided the co-administrators with the documents requested at the citation

hearing. The circuit court wrote in a docket entry that it gave the co-administrators until

July 31, 2013, in which “to file additional pleadings (citation to recovery).”

¶ 49 On July 31, 2013, the co-administrators filed a six-count petition for citation to

recover assets pursuant to section 16-1 of the Probate Act (755 ILCS 5/16-1 (West

2008)). Count I of the petition listed checks and debits from the Trust Bank account 16 written to or for the benefit of Tom. The co-administrators noted that Tom made a deposit

into the Trust Bank account that Tom had designated as a loan payment concluded that

Tom owed the estate the difference between the amounts he withdrew from the account

and the amount he paid back into the account.

¶ 50 In count II, the co-administrators listed eight checks totaling $16,104.27 that were

written on the Trust Bank account by Tom and were written to pay for services to

improve Bill’s home while Bill was alive. The co-administrators requested the circuit

court to order Tom to reimburse the estate for those funds. 2 In counts III and IV, the co-

executors noted Tom’s sale of Rex’s Harley-Davidson motorcycle and Jeep. They alleged

that the proceeds from the sale of those assets were never deposited into Rex’s checking

account and that the proceeds were assets belonging to the estate. They requested the

circuit court to enter an order directing Tom to reimburse the estate the proceeds from the

sale of those assets.

¶ 51 In count V, the co-administrators alleged improprieties with respect to the

financial assets managed by Lobacz, including the transfer of some of these investments

to Tom and changes to the payable on death designations for the investments that

remained in Rex’s name at the time of his death. The co-administrators alleged that Rex’s

funds invested through Lobacz belonged to the estate and should be returned to the

2 The circuit court found that Rex approved the use of these funds for the improvement of Bill’s house and denied the co-administrators’ request in count II that Tom reimburse the estate for the use of these funds. This finding is not at issue on appeal.

17 estate. 3 Finally, in count VI, the co-administrators requested that the circuit court order

Tom to pay punitive damages.

¶ 52 On August 26, 2013, Tom filed a motion to dismiss the citation, arguing that the

petition was barred by the applicable statute of limitations. The circuit court denied the

motion to dismiss. In a September 16, 2013, docket entry, the court wrote “that the

Petition for Citation to Recover Assets filed 7/31/13 relates back to the Petition for

Citation to Discover filed 7/24/07.”

¶ 53 Beginning January 28, 2014, the circuit court conducted a two-day hearing on the

citation for the recovery of assets directed at Tom. At the hearing, Tom again agreed that

all the money deposited into the Trust Bank account was Rex’s money except the money

he put in the account to pay his cousins upon Rex’s death. Tom explained that he did not

sign any of the checks on the account as Rex’s power of attorney because, he testified,

the Trust Bank account was also his own checking account. He agreed, however, that the

account was set up for convenience purposes and that it “was primarily used to keep

record keeping” and was mostly Rex’s money. He testified, “I set up the joint account for

record keeping for Rex.”

¶ 54 Tom testified that on average he probably traveled 200 miles or more a week

taking Rex to doctor appointments and other activities. Tom testified that most of the

time he paid for Rex’s expenses on his personal or business credit cards. He testified that

he also used his personal checkbook and cash from his pocket. When questioned by his

3 As stated, the circuit court found against the co-administrators with respect to count V, and the circuit court’s factual findings with respect to count V are not at issue on appeal. 18 attorney, Tom testified that he never took anything from Rex that was not for Rex’s

benefit and never did anything except what Rex wanted.

¶ 55 Tom testified that he spent “close to 25 hours a week taking Rex places, doing

things every week.” Those activities included several cataract surgeries, dental work, and

other medical appointments. He testified that he took care of everything for Rex and that

all of Rex’s medical appointments were an hour to two hours away from Olney. The

appointment locations included the VA hospital in Marion and eye doctors in Effingham.

Tom testified that he took Rex to have pedicures and manicures, to a dermatologist for

skin cancer, and had shoes made for Rex. Tom explained that he bought Rex’s clothes

and toiletries, took Rex for haircuts, and took Rex on motorcycle rides. Tom claimed that

on average it cost him and his wife over $40,000 per year to take care of Rex from 2001

until Rex died and that he paid those expenses out of his pocket when needed. However,

Tom did not produce any credit card receipts as evidence of Rex’s expenses that he paid

with his own funds. For the time Rex stayed at the boarding home, the Trust Bank

account showed $2000 paid each month to the boarding home for Rex’s board, laundry

services, three meals a day, phone service, and emergency transportation services.

¶ 56 Tom testified that he sold Rex’s Harley-Davidson motorcycle for $3000 and that

the proceeds from the sale probably went into the checking account or used to pay

expenses. Tom testified about selling Rex’s Jeep but did not remember how much he sold

it for or what specifically he did with the proceeds from the sale.

¶ 57 Following the two-day citation hearing in which Tom and other witnesses

testified, on September 30, 2014, the circuit court conducted a second citation hearing 19 involving Lobacz. Although Lobacz had already testified at a citation hearing, the

transcript of the previous hearing could not be produced. Therefore, on September 30,

2014, Lobacz testified a second time with respect to his handling of Rex’s investments.

¶ 58 On December 22, 2014, the circuit court conducted a status conference and made a

docket entry indicating that the parties had submitted written arguments in support of

their positions on the issues raised by the citation to recover assets directed at Tom. The

circuit court noted that the attorneys did not wish to make any further argument and,

therefore, the circuit court took the matter under advisement, indicating that it would

enter a written order.

¶ 59 Nothing further appears to have occurred in the proceeding for over two years,

until March 2, 2017, when Tom filed motion to cite additional authority. The circuit court

then conducted several status hearings and entered a 41-page order and memorandum of

its decision on November 6, 2017.

¶ 60 In its November 6, 2017, order, the circuit court noted that Tom was, at times,

more like a son to Rex than a nephew and that, among all of Rex’s nieces and nephews,

Tom had the closest relationship with Rex. However, with respect to the checks Tom

wrote on the Trust Bank account that resulted in Rex’s funds going to Tom, the circuit

court held that the removal of these funds by Tom from the Trust Bank account violated

the fiduciary duty Tom owed to Rex. The circuit court noted that Tom testified that he

often paid Rex’s expenses with his own credit cards or with cash and would then write

checks to himself to pay himself back for those expenses he advanced on Rex’s behalf.

20 However, the circuit court also noted that “Tom never brought forward any credit card

records or receipts to support his testimony in this regard.”

¶ 61 The circuit court held that, as a matter of law, because Tom was Rex’s power of

attorney at the time Tom wrote the checks, there existed a presumption that any

transaction that benefited Tom was procured through fraud or undue influence and that

Tom had the burden of rebutting that presumption by presenting some evidence to the

contrary. In assessing the evidence in light of this presumption, the circuit court made the

following factual finding:

“Tom Sloan’s ‘proof problem’ with regard to rebutting the presumption of

fraud/breach of fiduciary duty is that he has not provided sufficient documentation

to specifically show that he had provided and how much he has provided in

consideration and/or in amounts specifically paid toward Rex’s expenses and/or

the repayment of loans. Particularly lacking are Tom Sloan’s own

personal/business credit card receipts and/or account statements and/or any other

documentation showing such consideration, payment of expenses or repayment of

such loans. It is Tom Sloan’s burden and duty to bring that documentation

forward. He did not. Any such documentation would be clearly within and under

Tom Sloan’s control, particularly as compared to the other siblings and cousins

involved in this litigation. And, when [the co-administrators’ attorney] asked Tom

Sloan what if any such documentation he had, Tom Sloan replied that he didn’t

know/or that he really didn’t want to provide it.”

21 ¶ 62 The circuit court identified 27 specific checks that Tom wrote on the Trust Bank

account and one debit from the account that were paid either to Tom or deposited into

Tom’s personal or business accounts. The circuit court found that Tom failed to rebut the

presumption that such payments were obtained by fraud or undue influence. These

transactions totaled $71,301.97. From that total, the circuit court deducted $5484.30 that,

the circuit court found, Tom had paid back into the Trust Bank account as loan payments.

Therefore, with respect to count I, the circuit court concluded that Tom must return the

balance of $65,817.67 to the estate.

¶ 63 With respect to counts III and IV, which concerned Tom’s sale of Rex’s

motorcycle and Jeep, the circuit court found that Tom failed to rebut the presumption of

fraud/breach of fiduciary duty stemming from these sales. The circuit court noted that

Tom never presented any documents to show the deposit of the proceeds from these sales

into the Trust Bank account or other evidence to show the expenditures of these proceeds

for Rex’s benefit. The circuit court, therefore, ordered Tom to return $3000 to the estate

for the sale of Rex’s motorcycle and to return $3000 to the estate for the sale of the Jeep.

¶ 64 With respect to the co-administrators’ request for punitive damages in count VI,

the circuit court denied the request for punitive damages but granted the co-

administrators leave to file a petition for attorney fees and costs and reserved ruling on

any subsequent request for fees and costs. 4 The co-administrators’ attorneys subsequently

As indicated above, the circuit court denied the co-administrators’ request for relief in counts II 4

and V of the petition, finding that Tom did not breach his fiduciary duties with respect to the payments for improvements to Bill’s house (count II) and with respect to any of the transactions involving the investment accounts handled by Lobacz (count V). 22 filed fee petitions and, on July 5, 2019, the circuit court entered an order finding Tom

personally liable for $22,815 in attorney fees and $2265.87 in costs incurred by the co-

administrators. The circuit court ordered Tom to reimburse the estate for these attorney

fees and costs. In total, the circuit court ordered Tom to reimburse the estate of

$71,817.67 for funds he withdrew from the Trust Bank account in breach of his fiduciary

duty and reimburse the estate $25,080.87 for attorney fees and costs incurred by the co-

administrators. Tom now appeals the circuit court’s judgment.

¶ 65 II. ANALYSIS

¶ 66 The first issue Tom raises on appeal concerns the statute of limitations for citation

proceedings. The issue of whether the citation was untimely under the applicable statute

of limitations presents us with a question of law that we will review de novo. In re Estate

of Lashmett, 369 Ill. App. 3d 1013, 1016 (2007). Tom argues that the co-administrators’

citation for recovery of assets that they filed on July 31, 2013, was untimely pursuant to

the applicable statute of limitations. However, Tom does not cite any specific statutory

limitations period that he believes is applicable in this case. Therefore, we are left to

speculate concerning what specific limitations period Tom believes applies.

¶ 67 The co-administrators’ claims against Tom for the recovery of estate assets were

based on an alleged breach of the fiduciary duty Tom owed to Rex as Rex’s power of

attorney. A claim based on a breach of fiduciary duty must be brought within five years

after the cause of action accrued pursuant to section 13-205 of the Code of Civil

Procedure (Code). 735 ILCS 5/13-205 (West 2008) (“all civil actions not otherwise

provided for”); Fuller Family Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 23 618 (2007) (“Pursuant to section 13-205 of the Code, a breach of fiduciary duty claim

must be brought within five years after the cause of action accrued.”). Accordingly, we

will analyze the timeliness of the co-administrators’ citation proceeding under the five-

year statute of limitations set out in section 13-205 of the Code.

¶ 68 The co-administrators brought the citation proceeding pursuant to section 16-1 of

the Probate Act, which provides as follows:

“(a) Upon the filing of a petition therefor by the representative or by any other

person interested in the estate ***, the court shall order a citation to issue for the

appearance before it of any person whom the petitioner believes (1) to have

concealed, converted or embezzled or to have in his possession or control any

personal property, books of account, papers or evidences of debt or title to lands

which belonged to a person whose estate is being administered in that court or

which belongs to his estate or to his representative or (2) to have information or

knowledge withheld by the respondent from the representative and needed by the

representative for the recovery of any property by suit or otherwise. ***

***

(d) The court may examine the respondent on oath whether or not the

petitioner has proved the matters alleged in the petition, may hear the evidence

offered by any party, may determine all questions of title, claims of adverse title

and the right of property and may enter such orders and judgment as the case

requires.” 755 ILCS 5/16-1 (West 2008).

24 ¶ 69 The purpose of a citation proceeding under section 16-1 is to recover an estate’s

assets. In re Estate of Zagaria, 2013 IL App (1st) 122879, ¶ 24. During the citation

proceeding, the circuit court has power to determine the title and right to property and

enter such orders as the case requires. In re Estate of Elias, 408 Ill. App. 3d 301, 315

(2011). “[T]he citation procedure may be used repeatedly with regard to the same subject

matter.” Lashmett, 369 Ill. App. 3d at 1018; Schwaan v. Schwaan, 320 Ill. App. 287, 289

(1943). A finding by the circuit court that certain property belonged to the estate will not

be disturbed on appeal unless it is against the manifest weight of the evidence. Elias, 408

Ill. App. 3d at 315.

¶ 70 In the present case, the co-administrators initiated the original citation proceeding

directed at Tom on July 24, 2007, when they filed a citation to require him to produce

documents and answer questions about Rex’s assets and finances. Applying the five-year

statute of limitations to this initial citation petition, we note that all of the transactions

that are at issue on appeal occurred within five years of the filing of the initial citation for

information except two: (1) a $2400 check Tom wrote on April 4, 2002, and (2) a

$1023.44 check Tom wrote on May 2, 2002. However, with respect to these two checks,

the five-year statute of limitations would not have expired under the discovery rule.

¶ 71 Under the discovery rule, which is applicable to claims based on a breach of

fiduciary duty, the cause of action accrues and the limitations period begins to run when

the plaintiff knew or reasonably should have known of the injury and that it was

wrongfully caused. Fuller Family Holdings, LLC, 371 Ill. App. 3d at 618. Here, the co-

administrators would not have had sufficient knowledge concerning whether these 25 transactions constituted a breach of fiduciary duty until the completion of their citation

for information. Accordingly, the statute of limitations had not expired for any of the 17

withdrawals at issue when the co-administrators brought the original citation against Tom

on July 24, 2007.

¶ 72 Having determined that the original citation was timely with respect to all of the

transactions at issue on appeal, we then note that the first citation hearing at which Tom

appeared and answered questions occurred on May 8, 2013. At that hearing, the parties

agreed that the proceeding that day was for discovery purposes only, not for the recovery

of any assets. The co-administrators, however, expressly stated their intent to seek a

recovery of estate assets once they completed the citation for information. Therefore, at

the conclusion of the May 8, 2013, hearing, the citation directed to Tom remained at

issue. The co-administrators then filed the six-count petition seeking the recovery of

assets on July 31, 2013. Under these facts, the co-administrators’ claims for the recovery

of assets were timely under the relation back doctrine. Specifically, the co-administrators’

July 31, 2013, petition for a citation for the recovery of assets related back to the filing of

the original citation for information.

¶ 73 The relation back doctrine is codified in section 2-616(b) of the Code as follows:

“The cause of action, cross claim or defense set up in any amended pleading shall

not be barred by lapse of time under any statute or contract prescribing or limiting

the time within which an action may be brought or right asserted, if the time

prescribed or limited had not expired when the original pleading was filed, and if

it shall appear from the original and amended pleadings that the cause of action 26 asserted, or the defense or cross claim interposed in the amended pleading grew

out of the same transaction or occurrence set up in the original pleading, even

though the original pleading was defective in that it failed to allege the

performance of some act or the existence of some fact or some other matter which

is a necessary condition precedent to the right of recovery or defense asserted, if

the condition precedent has in fact been performed, and for the purpose of

preserving the cause of action, cross claim or defense set up in the amended

pleading, and for that purpose only, an amendment to any pleading shall be held to

relate back to the date of the filing of the original pleading so amended.” 735 ILCS

5/2-616(b) (West 2008).

¶ 74 “A liberal construction of the requirements of section 2-616(b) is necessary ‘to

allow the resolution of litigation on the merits and to avoid elevating questions of form

over substance.’ ” Lawler v. University of Chicago Medical Center, 2017 IL 120745, ¶ 21

(quoting Boatmen’s National Bank of Belleville v. Direct Lines, Inc., 167 Ill. 2d 88, 102

(1995)). “The purpose of the statute is to preserve causes of action against loss by reason

of technical default unrelated to the merits.” Id. (citing Porter v. Decatur Memorial

Hospital, 227 Ill. 2d 343, 355 (2008)).

¶ 75 Under section 2-616(b), an amended pleading relates back to the date that the

original pleading was filed if the following two requirements are satisfied: (1) the original

pleading was timely filed, and (2) the causes of action asserted in the amended pleading

grew out of the same transaction or occurrence that was set up in the original pleading.

27 735 ILCS 5/2-616(b) (West 2008); Porter, 227 Ill. 2d at 353; Lawler, 2017 IL 120745,

¶ 21.

¶ 76 In the present case, as we established above, if we apply the five-year statute of

limitations set out in section 13-205 of the Code, the co-administrators timely brought

their original citation for information with respect to all of the transactions at issue.

Therefore, the first requirement of the relation back doctrine is met. In addition, with

respect to the second requirement of the doctrine, the exact same transactions were the

subject matter of the citation for information as the citation for recovery. Accordingly,

the second requirement is met.

¶ 77 In the original citation, the co-administrators sought to discover information from

Tom which, in turn, led to the basis for the recovery of estate assets from Tom. As Rex’s

power of attorney, Tom had the information relevant to his use of the Trust Bank account

funds that he withdrew. Both the original and subsequent citation petitions centered on

Tom’s use of Rex’s assets while Tom was Rex’s power of attorney. Although the original

petition was a citation for information, the original petition sufficiently alerted Tom that

the co-administrators questioned the validity of the transactions at issue which afforded

Tom adequate opportunity to investigate the evidence relevant to those transactions. See

In re Estate of Nichols, 188 Ill. App. 3d 724, 728 (1989) (where the court noted that, with

respect to the relation back doctrine, the “courts must be mindful that one of the purposes

of a statute of limitations is to provide defendants with sufficient opportunity to

investigate factors upon which their liability may be based while relevant evidence is still

ascertainable”). 28 ¶ 78 In applying the relation back doctrine in this case, we find In re Estate of Chernyk,

138 Ill. App. 3d 233, 234 (1985), to be persuasive. In Chernyk, the decedent’s widow

filed a citation to discover assets pursuant to section 16-1 of the Probate Act

approximately five months after her deceased husband’s will was admitted to probate.

The widow’s citation sought to discover information and to compel the production of

documents that, the widow claimed, may lead to the discovery of estate assets held by the

defendants. Specifically, the widow sought information regarding a trust that the

defendants prepared and that the deceased husband purportedly executed, naming the

defendants as trustees and beneficiaries of the purported trust. Id.

¶ 79 The court conducted the discovery citation hearing over 19 months after the will

was admitted to probate, and the defendants appeared at the discovery citation hearing

and were examined. Id. At the conclusion of the proceeding, the widow was granted

leave to amend her discovery citation to a citation to recover estate assets. Id. Over 22

months after the discovery citation hearing, the widow filed her amended petition for

citation to recover assets against the defendants which included a request that the court

set aside the purported trust agreement. Id. at 234-35.

¶ 80 The defendants argued that the widow’s request to set aside the trust agreement

was untimely under section 13-223 of the Code which required that an action to set aside

a trust agreement must be commenced within six months after the admission of the will

to probate. Id. at 234. The circuit court agreed and dismissed the widow’s petition

seeking recovery of estate assets. Id. at 235.

29 ¶ 81 On appeal, the Chernyk court considered the informality of the citation procedures

set out in the Probate Act and considered the liberality in which pleadings in general are

allowed. Id. at 236. The court also observed that there are two types of citation

proceedings under section 16-1 of the Probate Act, one in the nature of discovery, which

formed the basis of the widow’s original petition, and the other being an adversarial

proceeding in which the title and right to personal property is contested and which

formed the basis of the widow’s amended petition. Id. at 237. The court then concluded

that the widow’s amended petition seeking to set aside the trust related back to the filing

of the original petition for information, which was filed within the time required for

seeking to aside a trust agreement. Id.

¶ 82 In the present case, the facts are similar to those in Chernyk. The co-

administrators’ original citation for information was for discovery purposes, and the

information they gleaned from that citation hearing formed part of the basis for bringing

the citation for recovery of estate assets. Under these facts, the recovery citation related

back to the date of the filing of the information citation. Accordingly, the co-

administrators’ claims were timely under the five-year statute of limitations set out in

section 13-205 of the Code. Although the petition seeking the recovery of estate property

was not labeled as an amendment to the original information citation, we consider the

substance of pleadings, not their title. People ex rel. Ryan v. City of West Chicago, 216

Ill. App. 3d 683, 688 (1991) (“In determining the nature of a pleading or a motion, courts

are not bound by the title given to the document by a party; instead, the substance of the

document will be examined.”). In addition, as explained above, the courts liberally 30 construe the relation back doctrine encompassed within section 2-616(b) of the Code to

avoid elevating questions of form over substance. Lawler, 2017 IL 120745, ¶ 21.

Accordingly, under the reasoning applied by the Chernyk court, the co-administrators’

citation to recover assets related back to the filing of their original citation for

information. As a result, we reject Tom’s claim that the citation for recovery of assets

was time barred.

¶ 83 Although we have analyzed the timeliness of the co-administrators’ claims

pursuant to the five-year statute of limitations as set out in 13-205 of the Code, we note

that in Lashmett, 369 Ill. App. 3d at 1018, the court held that the five-year statute of

limitations contained in section 13-205 of the Code does not apply to citation

proceedings. The Lashmett court reasoned that, because the circuit court’s “jurisdiction

sitting in probate extends to all property of the decedent, no matter where it may be found

or when,” the five-year statute of limitations “cannot apply.” Id. The Lashmett court

continued, “To allow the statute of limitations to bar the recovery of an asset of the estate

would serve to defeat the jurisdiction of the probate court and effectively restrict the

statutory and common-law power of the court to supervise the administration and

disposition of estates.” Id.

¶ 84 In the present case, because applying the five-year statute of limitations does not

result in barring any of the co-administrators’ claims against Tom, we need not determine

whether we agree with the Lashmett court’s holding that the five-year statute of

limitations is inapplicable to citation proceedings. In resolving this appeal, it is enough to

note that, under either scenario, Tom’s timeliness argument fails. 31 ¶ 85 Next, Tom argues that the circuit court erred in requiring him to reimburse the

estate for the money he withdrew from the Trust Bank account. We disagree.

¶ 86 As a matter of law, a fiduciary relationship was established when Tom obtained

the power of attorney on July 17, 2001. Deason v. Gutzler, 251 Ill. App. 3d 630, 637

(1993) (in Illinois, a power of attorney creates a fiduciary relationship between the

principal and the agent as a matter of law). The agent under a power of attorney has a

fiduciary duty to the principal who made the designation. 755 ILCS 45/2-7(a), (b) (West

2014); Spring Valley Nursing Center, L.P. v. Allen, 2012 IL App (3d) 110915, ¶ 12. The

mere existence of a fiduciary relationship prohibits the agent from seeking or obtaining

any selfish benefit for himself, and if the agent does so, the transaction is presumed to be

fraudulent. Id. Therefore, any conveyance of the principal’s property that either

materially benefits the agent or is for the agent’s own benefit is presumed to be

fraudulent. Id.

¶ 87 The presumption of fraud is not conclusive and may be rebutted with evidence that

the agent exercised good faith and did not betray the confidence placed in him. Jones v.

Washington, 412 Ill. 436, 441 (1952). If the agent rebuts the presumption of fraud, the

transaction in question will be upheld. Spring Valley Nursing Center, L.P., 2012 IL App

(3d) 110915, ¶ 13.

¶ 88 A rebuttable presumption does not shift the burden of proof, and is not evidence

itself, but arises as a rule of law or legal conclusion, which establishes a prima facie case

of undue influence, in the absence of evidence to the contrary. Franciscan Sisters Health

Care Corp. v. Dean, 95 Ill. 2d 452, 461-62 (1983). Stated differently, the presence of a 32 presumption in a case only has the effect of shifting the party against whom it operates

the burden of going forward and introducing evidence to meet the presumption. Id. at

462. If evidence is introduced which is contrary to the presumption, the presumption will

cease to operate. Id.

¶ 89 The amount of evidence necessary to meet the presumption is not determined by

any fixed rule and depends on the circumstances of each case. In re Estate of Pawlinski,

407 Ill. App. 3d 957, 966 (2011). Some of the significant factors to be considered in

determining if the presumption of fraud has been rebutted include whether the fiduciary

made a frank disclosure to the principal of the information he had, whether the fiduciary

paid adequate consideration, and whether the principal had competent and independent

advice. Spring Valley Nursing Center, L.P., 2012 IL App (3d) 110915, ¶ 13. The

fiduciary must show by clear and convincing evidence that he exercised good faith. Lemp

v. Hauptmann, 170 Ill. App. 3d 753, 757 (1988). Where there is a fiduciary relationship, a

gift is not presumed, regardless of the relationship of the parties involved. Id. at 758. A

circuit court’s determination as to whether a presumption of fraud had been overcome,

made after an evidentiary hearing, is entitled to deference and will not be reversed on

appeal unless it is against the manifest weight of the evidence. Spring Valley Nursing

Center, L.P., 2012 IL App (3d) 110915, ¶ 14.

¶ 90 In the present case, having reviewed the evidence presented in the proceedings

below, we conclude that the circuit court’s finding that Tom failed to rebut the

presumption of fraud concerning his withdrawals from the Trust Bank account was not

against the manifest weight of the evidence. 33 ¶ 91 The Trust Bank account was opened on March 26, 2002, for convenience purposes

only. The documents signed when the account was opened do not include Rex’s

signature. Instead, the forms included a “backup withholding certification” that Tom

signed as Rex’s power of attorney. Trust Bank kept a copy of the power of attorney in its

records associated with the account. During his testimony, Tom agreed that the money

that was deposited into the Trust Bank account was Rex’s money that was to be spent

only for Rex’s benefit. He agreed that the account was set up for convenience purposes

and that it “was primarily used to keep record keeping” in handling Rex’s finances. He

testified, “I set up the joint account for record keeping for Rex.”

¶ 92 Tom became Rex’s fiduciary after Rex began suffering symptoms stemming from

dementia and Alzheimer’s disease. Tom did not become a joint tenant on any of Rex’s

bank accounts until after he became Rex’s fiduciary. Tom did not contribute his own

money to the account and did not present evidence that Rex intended to give Tom the

money in the Trust Bank account, nor did Rex receive independent advice about setting

up and managing the Trust Bank account.

¶ 93 The record includes multiple checks Tom wrote on the Trust Bank account that

resulted in Tom either receiving cash from the Trust Bank account or placing funds from

the Trust Bank account into Tom’s personal or business bank accounts. Nothing in the

record established that Rex had knowledge of Tom’s withdrawals of funds from the

account. In addition, Tom did not provide evidence to show that these funds were

reimbursement for his own money that he spent for Rex’s benefit as he claimed during

his testimony. When he was asked about the money withdrawn from the account, he gave 34 vague and evasive answers and told the co-administrators’ attorney that he did not want

to provide the attorney with any documents.

¶ 94 In light of this evidence, the trial court's finding that Tom must reimburse Rex’s

estate for funds Tom withdrew from the Trust Bank account was not against the manifest

weight of the evidence. The record supports the trial court’s finding that Tom had not

“provided sufficient documentation to specifically show how much he had paid toward

Rex’s expenses and, therefore, failed to rebut the presumption that of fraud or breach of

fiduciary duty with respect to funds withdrawn from the Trust Bank account.”

¶ 95 Tom argues that the record was replete with testimony about the time he and Rex

spent together, including evidence that Tom spent time caring for Rex’s needs such as

taking him to doctor appointments and visiting him frequently. Tom argues that this

evidence established that Rex wanted Tom to have the funds left in the Trust Bank

account when he died. He argues that he did not remove any money from the Trust Bank

account under his power of attorney but removed the funds as an owner of the account.

He argues that any money he did not take out of the account during Rex’s lifetime should

have passed to him as a joint owner of the account upon Rex’s death. Accordingly, Tom

concludes, the estate suffered no loss or injury from any money Tom spent from the

account during Rex’s lifetime.

¶ 96 It is true that the creation of a statutory joint tenancy, such as the Trust Bank

account in the present case, normally creates a presumption of donative intent. Murgic v.

Granite City Trust & Savings Bank, 31 Ill. 2d 587, 589 (1964). A party claiming

adversely to the creation of the joint account usually has the burden of proving by clear 35 and convincing evidence that a gift was not intended. Id. In the present case, however, the

presumption of donative intent does not apply because Tom opened the Trust Bank

account with Rex’s funds as Rex’s power of attorney and exclusively for the stated

purpose of convenience in managing Rex’s finances. Under such circumstances, there is

no presumption of donative intent on the part of Rex with respect to Rex’s funds

deposited into the account. Instead, there is a presumption of fraud or undue influence in

the establishment of the account with Tom as a joint owner with the right of survivorship.

¶ 97 Where the attorney-in-fact actively uses his position to create a joint account, the

controlling presumption is the presumption of fraud, which requires strong evidence to

overcome. In re Estate of DeJarnette, 286 Ill. App. 3d 1082, 1089 (1997) (citing In re

Estate of Rybolt, 258 Ill. App. 3d 886, 890 (1994)). This is particularly true when the

joint account is a convenience account. A convenience account is a joint account where

the creator did not intend the other “tenant” to have any present or future interest in the

account. In re Estate of Shea, 364 Ill. App. 3d 963, 969 (2006). Tom offered no evidence

to rebut the presumption of fraud or undue influence in the establishment of the Trust

Bank account as a joint account. Therefore, we reject Tom’s argument that the circuit

court erred in not honoring his right to survivorship as a joint owner of the Trust Bank

¶ 98 Finally, Tom argues that the circuit court erred in granting an injunction. Tom

does not identify with specificity which portion of the circuit court’s judgment that he

believes is improper injunctive relief. In addition, he did not raise this issue in the

proceedings below. Normally, issues not objected to at the circuit court level or raised in 36 a posttrial motion are forfeited for review on appeal. 1010 Lake Shore Ass’n v. Deutsche

Bank National Trust Co., 2015 IL 118372, ¶ 14. Regardless, the argument has no merit.

¶ 99 The circuit court ordered Tom to return assets of the estate, which included

$65,817.67 of Rex’s funds that Tom withdrew from the Trust Bank account, $3000 of

proceeds Tom received from the sale of Rex’s motorcycle, and $3000 Tom received from

the sale of Rex’s Jeep. The court ordered Tom to pay a total of $71,81.67 to the co-

administrators of the estate. This relief granted by the circuit court was an appropriate

order in a proceeding involving a citation to recover assets of an estate.

¶ 100 Section 16-1(d) of the Probate Act authorizes the circuit court to “enter such

orders and judgment as the case requires.” 755 ILCS 5/16-1(d) (West 2008). The statute

provides that, if the respondent

“refuses to obey the court’s order to deliver any personal property or, if

converted, its proceeds or value, or books of account, papers or evidences of debt

or title to lands, the court may commit him to jail until he complies with the order

of the court or is discharged by due course of law and the court may enforce its

order against the respondent’s real and personal property in the manner in which

judgments for the payment of money are enforced.” (Emphasis added.) Id.

¶ 101 Here, the circuit court’s order directed Tom to deliver funds to the co-

administrators to the estate. The circuit court’s order, therefore, does not exceed the

remedies that are available under section 16-1(d) of the Probate Act.

¶ 102 III. CONCLUSION

¶ 103 For the foregoing reasons, we affirm the circuit court’s judgment. 37 ¶ 104 Affirmed.