Illinois Appellate Court Vacates and Remands Case Dismissed; Contest Over Mutual Last Will and Testament

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.

Alma died in 2013. On March 3, 2014, the co-executors of Alma’s estate published notice of her death including notification that there is a six-month statute of limitations for contesting the will and that any claims not filed by Sept. 4, 2014, were barred.

On Sept. 4, 2014, Hebrew University filed its claim, seeking 60% of the pour over trust that Alma had established. The figure of 60% was arrived at because one beneficiary of the 1983 will had died, which increased the percentage.

The co-executors filed a motion to dismiss, maintaining that because the school was not a trustee under the 1983 will, it lacked standing to bring a claim. The school argued it was a beneficial legatee of the 1983 will, which the school asserted was a “joint and mutual will.”

Hebrew University argued that a “legatee of a joint and mutual will has a claim against the estate of a second spouse to die, when the surviving spouse executes a subsequent will that does benefit the legatee in the same manner.”

The co-executors emphasized that First National Bank, where the money was to be kept in a trust, according to the terms of the 1983 will, was the actual legatee, and the Hebrew University was merely a beneficial legatee, meaning not generally permitted to “bypass” the trustee and bring a suit on its own standing.

The school argued that the trustee, Chase Bank (the successor to First National), refused to take action and had been notified of the school’s intent to sue. The university submitted an affidavit from the attorney that Chase had been notified of the will and the deadline. The trial court, however, granted dismissal. Hebrew University appealed.

The appellate court agreed that generally the trustee, not the beneficiary, is the party withstanding to sue, but the court noted that this may be an exception due to Chase Bank’s refusal or inability to pursue a claim after being notified by the university.

Because of this, the Illinois Appellate Court concluded that Chase was “incapable or unwilling to pursue an action on the school’s behalf” and the case may warrant a trustee ad litem to consider the issue. The appellate court concluded that material issues of standing were still unresolved by the record and that these disputed facts preclude dismissal before an evidentiary hearing can be held.  Therefore, the appellate court vacated the dismissal order and sent the case back for further hearings.

In re Estate of Alma M. Zivin, 2015 IL App (1st) 150606 (Dec. 17, 2015).

Kreisman Law Offices has been handling probate estates, probate litigation and civil trial matters for individuals, families and businesses for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Worth, Hickory Hills, Alsip. Palos Park, Orland Park, Lemont, Yorkfield, Bensenville, Elk Grove Village, Mount Prospect, Wheeling, Arlington Heights, Palatine, River Grove, Bedford Park, Oak Lawn, Blue Island, Harvey, Chicago (Sauganash, Sheffield, South Chicago, South Shore, University of Chicago, West Loop, Pilsen, Pill Hill, Old Town Triangle, McKinley Park, Loyola Park, Lower West Side, Bronzeville, Edison Park, Edgewater, Garfield Park, Horner Park, Humboldt Park), Mundelein, Hinsdale and Geneva, Ill.

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