December 2009 • Volume 97 • Number 12 • Page 598
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Where there’s another will, there may be a way
The failure to contest a will does not always bar an action for intentional interference with an expectancy of inheritance, the supreme court rules.
There may be more than one way around a will that's not to a disappointed beneficiary's liking - as long as the survivor is aware of an earlier, more favorable will.
Section 8-1 of the Probate Act of 1975, 755 ILCS 5/8-1, provides a six-month period to contest a will's validity after the will has been admitted to probate. The statute's intent, as our supreme court has noted, is to enable the orderly and expeditious settlement of estates by providing only a restricted window for will contests.
In a newly issued opinion, however, the Illinois Supreme Court has qualified section 8-1's limitation period. The court held that section 8-1 does not apply to an action for intentional interference with an expectancy of inheritance where the plaintiff could not have filed an action to contest a will within the statutory six-month period. The case is In re Estate of Ellis, No 106461, 2009 WL 3471069 (Ill Sup Ct).
The facts of Ellis
In 1964, Grace Ellis executed her will, naming Shriners Hospitals for Children as beneficiary of her estate if she died without direct descendants. Shriners knew nothing at that time of Ellis's generosity. In 1999, Ellis executed a new will, naming her pastor, James G. Bauman, as sole beneficiary.
Ellis died in 2003, leaving an estate of more than two million dollars and no direct descendants. Her 1999 will was filed with the circuit court and admitted to probate. However, several of her heirs at law filed a will contest. As part of that proceeding, around three years after Ellis's death, Bauman filed Ellis's 1964 will with the court. Shriners then learned that Ellis had named it as beneficiary in her earlier will.
Shriners then filed a "Petition to Contest Will and For Other relief." The first two counts of its petition contested the 1999 will's validity based on theories of undue influence and mental incapacity. The third count set forth a tort claim for intentional interference with an expectancy of inheritance and requested an accounting of all transfers and gifts of Ellis's property while she was still alive, compensatory damages of more than $2 million, and punitive damages.
Grounding his arguments on 755 ILCS 5/8-1, Bauman moved to dismiss Shriners' petition, noting that it was filed more than six months after the 1999 will had been admitted to probate. The circuit court granted the motion. Shriners appealed the dismissal of count III. The appellate court affirmed, and the supreme court granted leave to appeal.
No opportunity to pursue a remedy
Examining section 8-1's plain language, the court noted that its limitation period applies only to a "petition...to contest the validity of the will." A will contest, the court continued, is a fundamentally different action from a tort claim for intentional interference with expectancy of inheritance. The former is an action quasi in rem, against the will itself and not the beneficiaries. The latter, in contrast, is an action seeking a personal judgment against a defendant, not the annulment of a will.
The elements of each action, too, are different, noted the court, though some of the evidence will inevitably overlap. Because 755 ILCS 5/8-1 applies only to will contests, the court held that the appellate court erred in applying its six-month limitation period to Shriners' tort claim for intentional interference with an expectancy of inheritance.
The court distinguished prior case law holding that tort actions such as the one before it should be dismissed where the plaintiffs could have filed will contests but chose not to do so. Unlike those plaintiffs, the court said, Shriners had no knowledge of Ellis's bequest in her 1964 will until after the 1999 will was admitted to probate and section 8-1's six-month deadline for a will contest had expired.
Furthermore, the court added, a will contest alone would not have provided Shriners with a full remedy because Shriners would not have been able to litigate its claims that Bauman had depleted Ellis's estate by unduly influencing her to transfer property to him. For those reasons, the court said, Shriners did not have a fair opportunity to pursue a remedy in probate. restricting its holding to the facts before it, the court declined to extend its holding to plaintiffs who fail to bring tort claims within the period for filing a will contest where the will contest remedy is available to them.
Of course, had Ellis and her attorney destroyed her prior will upon making her new one, Shriners would never have known that it had at one time been named as beneficiary and would never have filed its action. "Where there are two wills, is there a way? What should lawyers do with earlier wills that have been revoked by a later one?" LawPulse, May 2008 IBJ, addresses arguments on both sides of destroying a will upon the testator's revoking it and making a new one or maintaining it and filing it and any subsequently made wills with the court upon the testator's death.