Articles Posted in Wills & Trusts Litigation

The day before Eugene Lay died from lung cancer in January 2016, he allegedly signed a will that revoked his 1979 will. The new will left all of his assets to Delbert Miller. However, when Beverly Kelton, a legatee under the earlier 1979 will, challenged the 2016 testament, a  judge in Kankakee County, Ill., granted Delbert Miller’s motion to dismiss based on alleged lack of statutory standing under Section 1-2.11 of the Illinois Probate Act.

Section 8-1(a) of the Illinois Probate Act authorizes attacks on the validity of a will by any “interested person,” as defined in Section 1-2.11. Failure to qualify as an “interested person” for a will contest amounts to a lack of standing that can be presented as an affirmative defense in a motion under Section 2-619(a)(9) of the Illinois Code of Civil Procedure.

Miller argued that Kelton was obligated to prove that she had standing because the 2016 will contained a revocation clause. Miller relied on the dicta in the Illinois Supreme Court case of Estate of Schlenker, 209 Ill.2d 456 (2004). In granting Miller’s motion to dismiss, the trial court also cited the Estate of Koziol, 366 Ill.App.3d 171 (2006), which involved the presumption that a missing will was revoked.

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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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In an Illinois Appellate Court decision, it was found that a trust’s beneficiaries had sufficient minimum contact with the state simply through their ownership interest of a trust administered by an Illinois resident.

In May 2012, a Cook County associate court judge dismissed the trust dispute case for lack of jurisdiction. 

The trial judge had relied on an opinion that lacked precedential value that undermined that court’s holding, so said the opinion of appellate court Justice Robert E. Gordon. The Illinois Appellate Court reversed the trial court’s ruling dismissing the case.

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The Illinois Appellate Court has affirmed a decision by a Cook County probate judge  regarding the admission of a will.  Jozef Opiela died in January 1975.  He purportedly left a will dated March 1972, as well as a codicil to the will that was dated August 1972. Under the terms of the will, Opiela left all of his property to his son, Edward. The codicil made it clear that Opiela’s other heirs were disinherited.  Edward Opiela died in June 2003 and was survived by his son, Richard.  Richard petitioned the court to admit the will and codicil to probate in an action brought in April 2007.

At the trial level, the probate judge held an evidentiary hearing concerning the will.  The sole witness to testify was Richard McQueen, whose mother was a friend of Richard Opiela’s mother and who had known the decedent.  At the hearing, McQueen testified that on the day the will was executed, he gave Jozef a ride to an attorney’s office where Jozef told him he had “some papers” to take care of.  At the time, McQueen was 20 years old and believed Jozef to have been about 70.  McQueen drove Jozef to the office and entered with him.

At the attorney’s office, Eugenie Wnorowski and her colleague, both of whom are dead, were present.

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