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02/19/87 In Re Estate of Joseph Clements

February 19, 1987

IN RE ESTATE OF JOSEPH CLEMENTS, DECEASED (MARY KIRK, ADM'R


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

of the Estate of Joseph Clements, Petitioner-Appellee, v.

Charles Clements, Respondent-Appellant)

505 N.E.2d 7, 152 Ill. App. 3d 890, 105 Ill. Dec. 881 1987.IL.178

Appeal from the Circuit Court of Franklin County; the Hon. Loren P. Lewis, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE KARNS delivered the opinion of the court. JONES and KASSERMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KARNS

The administrator of the estate of Joseph Clements brought a citation to recover assets and discover information against Charles Clements alleging that certain accounts transferred into joint tenancy on January 7 and 31, 1983, were property of the estate and not the property of Charles Clements as surviving joint tenant. The trial court found that Joseph Clements was not competent to make a gift of the accounts at the time each was made and ordered Charles Clements to turn over the accounts and accrued interest to the estate. Charles Clements appeals the trial court's decision. We affirm.

Joseph Clements died intestate on March 26, 1983, leaving as heirs two brothers, two nieces, and one nephew, Charles Clements. The approximate value of the personal estate was $500. The administrator, one of Joseph Clements' nieces, sought to recover from Charles Clements (Charles) $7,327 deposited into a savings account on January 7, 1983, at the Bank of West Frankfort; $247.10 deposited into a savings account on January 31, 1983, at the First Community Bank of West Frankfort; and two certificates of deposit totaling $43,000 issued on January 31, 1983, at First Community Bank of West Frankfort.

Joseph Clements, decedent, was 80 years old at the time of his death. He was a double amputee and an alcoholic. He was also diagnosed by various doctors as suffering from emphysema, pleural effusion, chronic obstructive pulmonary disease, bronchogenic carcinoma, black lung disease, hypoxemia, and organic brain syndrome.

From December 7, 1982, through January 10, 1983, decedent was hospitalized at the UMWA Hospital in West Frankfort. Charles testified he saw his uncle almost every day during this stay. According to Charles, decedent always recognized him and his wife and did not appear confused. One of Charles' neighbors who came to visit decedent four or five times at the hospital stated decedent did not appear to be confused and that decedent always recognized him and called him by his nickname. He further testified decedent told him he was going to leave his money to his nephew for taking care of him. One of decedent's nieces, who was also an employee at the hospital, testified she visited decedent every day during his stay at UMWA Hospital and at times he was confused and did not recognize her. The orderly who attended decedent on a daily basis similarly testified decedent would be confused and combative and swearing one day and the next day would be quiet. It was during this time period that the first transfer of accounts occurred.

On January 10, 1983, decedent was transferred from UMWA Hospital to Memorial Hospital in Carbondale. Decedent was referred to a pulmonary specialist, Dr. Sanjabi. Dr. Sanjabi examined decedent on that day and found him to be communicative. He was not able to get, however, a clear history from decedent of his medical condition and had difficulty with decedent's mental status. Dr. Sanjabi further noted physical atrophy, or a shrinking of both sides of the cortex, on the CT scan of decedent's head. He asked Dr. Modali, a psychiatrist, to examine decedent.

Dr. Modali first examined decedent on January 24, 1983. She was not able to obtain a history from him because he was disoriented, agitated, talking to himself, trying to get out of bed, and hallucinating. He was not oriented to person, place, or time and so confused that she could not test his memory or mental capacity. Dr. Modali also saw decedent on January 25, 26, and 27. Each time decedent was still disoriented to various degrees. On the 27th of January, decedent was alert, restless, agitated, and paranoid. He believed he had been kidnaped and was being imprisoned in the hospital. Dr. Modali diagnosed decedent as suffering from chronic, or irreversible, organic brain syndrome. This disease affects a person's complete mental condition, including judgment and decision making. Symptoms include loss of memory, confusion, paranoia, and hallucinations. Dr. Modali also testified that it is not uncommon for a person with organic brain syndrome to have severe fluctuations in his mental state on even an hourly basis.

During his stay at Memorial Hospital, on January 18, 1983, two officers of First Community Bank of West Frankfort visited decedent. These bank officers were sent by the head cashier of the bank, who had been approached earlier by Charles with a note requesting that Charles be put on decedent's accounts. The officers explained to decedent the effect of putting his accounts into joint tenancy. ...


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