APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS
T. DELANEY, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 13, 1975.
This appeal evolves from an action brought by the plaintiff, Gertrude Tatelman, mother of Irwin Tatelman, deceased, to enjoin payment of the proceeds of certain life insurance policies issued on Irwin Tatelman's life to the defendant, Brenda Tatelman, the designated beneficiary. The plaintiff alleged that she was entitled to the proceeds rather than the defendant, Brenda Tatelman, the deceased's wife. The latter filed a verified motion for summary judgment alleging that there existed no genuine issue as to any material fact and that the plaintiff's amended complaint failed to state a cause of action. The Chancery Division of the Circuit Court, which had before it all of the pleadings and a discovery deposition of the plaintiff taken by the defendant, granted the motion of defendant, Brenda Tatelman, and ordered the insurance companies to pay the proceeds of the policies to her.
The record reveals that the defendant insurance companies deposited all monies due under the respective policies with the clerk of the court, and they are not parties to this appeal.
The record further reveals the following facts: The deceased, Irwin Tatelman, and the defendant, Brenda Tatelman, were married on March 31, 1968. They were living separate and apart since September 17, 1972. On March 23, 1973, they entered into a written property settlement agreement in contemplation of a divorce, a copy of which was attached to the amended complaint. The defendant, Brenda Tatelman, had previously been named by her husband, Irwin, as the sole beneficiary of the insurance policies in question. No mention of the policies was made in the property settlement agreement.
The plaintiff's complaint alleged that Irwin and Brenda were hopelessly estranged. Brenda was insistent upon obtaining a divorce. Irwin on many occasions attempted to obtain a reconciliation, but was spurned by her. Brenda no longer "had a place in his affections and because of the intense hatred and lack of love and affection Brenda had for Irwin, it was no longer Irwin's intention * * * to continue to name Brenda as his beneficiary under the said policies of insurance," and Irwin's true intent was to change the name of the beneficiary to his mother, the plaintiff, Gertrude Tatelman. On or about April 1, 1973, Irwin went to Centralia, Illinois, to assist his father in the operation of a country club and while there was killed in an automobile accident on April 6, 1973.
In a discovery deposition, the plaintiff testified that on about March 28, 1973, her son was at her home for dinner. He told her "that he was going to transfer his insurance making me beneficiary when he came back from Centralia," and that "he was going to transfer his insurance as soon as he came back." The plaintiff's sister, Mildred Goodman, was present during this conversation. When the plaintiff was asked what else Irwin said with reference to the insurance, she replied, "Nothing else." She said he talked about his coming divorce and said he was going to take care of everything when he got back. She did not remember discussing his insurance with him at any other time. He had discussed the matter of a divorce a number of times with her. He had told her that he was angry with his wife because she was having an affair with another man and she told him about it. He told her "he hated [his wife's] guts."
The plaintiff strenuously argues, based on the above facts, that it was the intention of Irwin Tatelman to change the beneficiary of his insurance from his wife to her, but that he was prevented from complying with the terms of the policies by his untimely death. It is her position that in order to do justice and to respect the wishes of a deceased person, a court of equity will intervene to carry out the clear and evident intention of a person under such circumstances.
• 1 The law is clear, however, that some positive action must be taken by the insured to comply with the terms of the policy in regard to changing beneficiaries to warrant the intervention of a court of equity. Substantial compliance with the terms of the policy has been deemed essential. (See Freund v. Freund, 218 Ill. 189, 75 N.E. 925; Begley v. Miller, 137 Ill. App. 278.) An oral declaration that a beneficiary has been changed or will be changed is not sufficient to effect the change. Williams v. Teachers Insurance & Annuity Association, 15 Ill. App.3d 542, 304 N.E.2d 656.
• 2 These principles are recognized by various other authorities. In 2 Appleman, Insurance Law and Practice § 963, at 591-93 (1966), it is stated:
"Where the insured takes a positive action which evidences his obvious desire for a change of beneficiary, the courts will take such a construction as will assist in carrying out such intention. * * * It is ordinarily necessary, however, that affirmative action be taken by the policyholder to effectuate his intention the intention alone, however definite, being insufficient. Oral statements of the insured's intention are insufficient to accomplish this result * * *." (Emphasis added.)
And in § 985, at 620, it is stated:
"Where the insured has made no effort to comply with the policy terms * * * and has merely expressed an intention or desire as to who shall receive the fund, equity will not intervene. This may arise where the insured waits until shortly before his death before attempting to comply with the policy requirements, ...