Articles Posted in Probate Litigation

In 1983, Alma and Israel Zivin executed a mutual last will and testament. The will stated that upon either the death of Alma or Israel, all property would go to the other. The will further stated that in the event that they both died or upon the death of their survivor, 50% of their estate should go to the specified family and friends and the remainder would pass to the Hebrew University of Jerusalem in New York City.

The Zivins had no children. Israel passed away in 1984 and his estate was bequeathed in accordance with the terms of the will to Alma.

In 2004, Alma signed her own will, which expressly revoked any and all prior wills. Her new will made specific bequests of personal items and gave the remainder of her estate to a “pour over trust” with no provision made to Hebrew University.

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Jose Adame paid $145,000 for a house that was being sold by joint tenants, Arnold and Arthur Lynch. There was a problem with the warranty deed that Arnold signed in June 2005.

In 2002, Arnold was in a coma following a car accident. The judge appointed James Brya as plenary guardian of Arnold’s estate and person. Arnold eventually regained consciousness. But the guardianship was never canceled. This meant that the warranty deed signed by Arnold, who was still under the court’s guardianship orders, was invalid or void.

Arnold died intestate ten months after the closing, leaving Arthur as the sole heir. In 2009, the Cook County public guardian was appointed as plenary protector of Arthur’s estate and person.

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The Rev. Timothy O’Malley and William O’Malley were two of Eileen O’Malley’s sons. In 1996, Eileen O’Malley experienced the first signs of dementia. The same year, Eileen and Timothy opened a joint checking account with First Midwest Bank Corp.

Eileen instructed that the account statements be sent to the Palos Country Club, a family asset managed by William O’Malley. Timothy never saw the account statements and so had no way of knowing that it contained almost $5 million in February 2004 and that by February 2009, there was less than $100,000 in the account. William had withdrawn the rest.

William, with two of his siblings, developed a plan “to defraud their 8 siblings and Eileen so that [they] would control Eileen’s assets.” To accomplish that, they had Eileen sign documents, including “wills, trust agreements and checks which did not reflect Eileen’s wishes.”

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Richard Yanni appealed from the trial court’s order that imposed a constructive trust on property he owned and awarded attorney fees and punitive damages against him. The appellate court ruled that the trial court was wrong in denying his motion to dismiss. Accordingly, the Illinois Appellate Court vacated the trial judge’s judgment in favor of the petitioner Diana Law, the Kane County Public Guardian, and reversed the trial judge’s denial of Yanni’s motion to dismiss.

In March 2013, an emergency temporary guardianship brought by the daughter of Patricia Yanni ordered that Patricia was a disabled person. In the petition brought by Patricia’s daughter, Kristin Davison, it was alleged that Patricia Yanni was unable to handle personal and financial affairs due to her dementia and physical illnesses.

Davison alleged that Patricia’s son, Richard, who lived with Patricia, “was found to be neglecting his mother.” Patricia had been removed from her home and placed in a skilled nursing facility. Davison wanted to have the public guardian appointed as guardian of her mother’s estate and to have herself appointed as guardian of her mother. The trial judge granted that petition appointing Davison as temporary guardian with leave to place her mother in an appropriate facility. The court appointed Law, the Kane County Public Guardian, as temporary guardian of Patricia Yanni’s estate. The court also appointed a guardian ad litem (GAL).

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In a case involving Donald Howell, who was born with profound cognitive impairment and who had received a settlement of $11 million from a Chicago landlord from lead-poisoning, the issue here was, could the court “substitute judgment” on where his money would go at the time of his death? Relying on the “substituted judgment” doctrine, his co-guardians, Northern Trust Co. and LaTanya Turks, argued that Donald would want his money to go to Turks, his mother and full-time caretaker, rather than also being shared under Illinois Intestacy Law with family members, which included his father and ten half-siblings born to ten different women who allegedly had no significant role in his life.

Under the Illinois Probate Act, Section 11a-18(a-5) authorizes guardians to draft estate plans that depart from the default formula for distributing a decedent’s assets. That section of the statute, which refers to acting “in keeping with the ward’s wishes so far as they can be ascertained,” also says the “ward’s wishes, as best they can be ascertained, shall be carried out.”

In this probate matter, the “ward’s wishes” provisions were in conflict with the court- appointed guardian ad litem who opposed the estate plan suggested by Northern Trust and Turks. According to the guardian ad litem, the proposed estate plan was improper because Donald never had testamentary capacity and could not express any wishes about who would inherit his money on his death.

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The U.S. Court of Appeals for the 7th Circuit in Chicago has affirmed a decision by a United States district court judge regarding subject-matter jurisdiction and a voluntary dismissal of a complaint.

Mieczyslaw Kuznar, a native of Poland, moved to the United States leaving his wife, Emilia, and his son, Thomas, behind. While living in the United States, Kuznar married Anna, but never divorced Emilia. Kuznar died intestate in 1995. Anna began collecting spousal benefits from his pension the year of his death.

In 1997, Thomas, by that time an adult, opened a probate estate in the Illinois state court seeking judicial administration of his father’s estate. Thomas was acting on his mother’s behalf; she continued to live in Poland.

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Mary Dicks died on Sept. 25, 2012. Her granddaughter, Jennifer Barber, was her closest living relative and her only heir. Barber claimed that Dicks died intestate and filed a petition to be named administrator of her estate.

However, Allison Ferconio, who was Dicks’s niece, filed a will with the Circuit Court. The will was dated May 23, 2012 naming Ferconio as executor and left Dicks’s estate to six individuals. On that list was Ferconio, but not Barber. The will was signed and witnessed by Richard Tebik and Robert Abraham who signed a standard attestation clause.

The attestation clause indicated that the will was signed in the presence of each of the two witnesses. There was a second attestation clause, claiming that Dicks signed the document as her will and acknowledged her signature in the presence of both witnesses. The court admitted the will and named Ferconio as her executor. Barber filed a request for a formal proof of will seeking the testimony of Tebik and Abraham.

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F. Gary Kovac, the plaintiff in this matter, sued the estate of Kenneth L. Barron Jr. for compensatory damages and exemplary or punitive damages. In the majority of jurisdictions, punitive damages are not allowed after the death of the defendant tortfeasor.

Kovac and Barron owned 50% of three different corporations. In his original lawsuit, Kovac accused Barron of a pattern of serious misconduct, which included diverting millions of dollars from the businesses. Kovac sued Barron in Kane County, Ill. When Barron died, Kovac continued the lawsuit against the administrator of Barron’s estate who was his widow, Sandra Barron.

At the end of the bench trial, the trial judge ordered Barron’s estate to pay $3,220,702 for fraud and an additional $450,000 in punitive damages.

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The Illinois Appellate Court has affirmed the decision by a Cook County associate judge who ordered the removal of the guardian of a disabled person.

On Feb. 24, 2009, Patricia Herard was adjudicated by the court to be disabled. Herard was diagnosed with “profound mental retardation and legal blindness.”  It was also reported that she has epilepsy, behavior reminiscent of autism and functioning “in the age ranges of 9 months to just fewer than 3 years.” Patricia’s mother was appointed her legal guardian.

An agreement was signed and delivered to the court between Herard’s parents, her guardian ad litem and the Bank of America.  The agreement required Herard’s parents to grant reasonable access to Herard for a court-appointed case manager, in this case, Rehab Assist Guardianship Services.  The reasonable access was intended to include both announced and unannounced visits.

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Recently two Cook County Circuit Court judges, Judge Lynn M. Egan (Law Division) and Judge Mary Ellen Coghlan (Probate Division), developed an instructive PowerPoint program for Illinois lawyers, in an effort to clearly define the differences between wrongful death actions and survival actions in Illinois.

In a wrongful death act claim, the recovery would be for the exclusive benefit of the decedent’s surviving spouse and next-of-kin.  If the wrongful death was immediate with no pain and suffering associated with it, a special administrator could be appointed as the case is being filed. No probate estate would be necessary.

However, the confusion begins when a wrongful death act claim and a survival statute claim are both present. When a survival action is available to a plaintiff, the judges concur that a probate estate must be set up for the benefit of the decedent’s estate.  A survival action is like many personal injury cases in which there may be pain and suffering element to the case associated with the injury that later resulted in death. Where there is a portion of the recovery for damages related to pain and suffering by settlement or verdict, the sum associated with the survival action goes to the decedent’s estate, not to the next-of-kin or surviving spouse as it would if for the wrongful death action. 

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