APPEAL from the Circuit Court of Du Page County; the Hon.
ALFRED E. WOODWARD, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This action was brought by Emil Brecel, seeking to set aside a quitclaim deed from his mother to herself and his sister, Erna Carlstedt, as joint tenants which was executed approximately two months before the mother's death; or, in the alternative, that the court decree that Erna be declared to be a constructive trustee for the benefit of plaintiff as to one-half of the subject real estate.
The plaintiff has raised five issues. The first is that the defendants did not establish the existence of a valid inter vivos gift of the real estate, plaintiff contending the burden is on the donee to prove the essential facts of the gift by clear, convincing and unequivocal evidence. In this connection plaintiff contends that a breach, or abuse, of a confidential relationship was perpetrated on the donor by the donee. The defendant contends that, to the contrary, the presumption of a gift is intended where a mother transfers or delivers her property to a daughter and that one seeking to establish that the gift was not intended is required to show the absence of such intent by clear and convincing evidence. The second contention of the plaintiff is that the defendant failed to meet the burden of proof establishing the validity of an inter vivos gift. Because we feel that the existence of the deed of real estate eliminates the need to prove all the elements of a inter vivos gift, we shall consider these two issues together. The third contention of the plaintiff is that it was error for the court to admit into evidence a conversation between the attorney who drafted the deed in question and the donor, Pauline Brecel. The fourth contention is that it was error for the attorney to be called as the court's witness. This contention will not be considered as the attorney for the plaintiff himself asked that that attorney be called as a court's witness. The fifth issue presented is that the decedent lacked the required mental capacity to execute the quitclaim deed in question on August 30, 1972. Subsequently an amended complaint filed herein included the question of personal assets of the decedent and we are advised, and the trial court found, that those assets had been divided between the parties in question. The sole question remaining was whether the determination of the court that the quitclaim deed from the decedent to the daughter was a valid inter vivos gift and that there was no abuse, fraud or breach of the confidential relationship between the daughter and her mother was correct.
The decedent, Pauline Brecel, who resided in Elmhurst, Illinois, was 79 years of age at the time of her death. She had three children, Emil Brecel, the plaintiff herein, who resides in California, Erna Carlstedt, a daughter then residing in Lombard, Illinois, and Emma Brecel, a daughter residing in Rome, Italy. The decedent left a last will and testament, which was not probated, which, after the bequest of $2000 to her daughter Emma, left the remainder of her property to be divided equally between her son Emil and her daughter Erna.
The testimony showed that a "close relationship" did exist between Erna Carlstedt, residing in nearby Lombard, and her mother, residing in Elmhurst. Erna took care of her mother's financial affairs and visited with her frequently. In August 1972 Mrs. Brecel was admitted to Elmhurst Hospital and while in the hospital was visited by an attorney in a friendly visit as he had known her since he was a little boy. He saw her again in the hospital on August 30, 1972, bringing with him the quitclaim deed in question. Over objection at trial, he testified that he told her: "You are giving to your daughter an interest in this house and it will be hers upon your death." Mrs. Brecel was released from the hospital and returned home on September 10, 1972. She died on October 20, 1972.
At the outset it is to be observed that the courts> have adopted the term "confidential relationship" in a sense different from the ordinary connotation of that term. Obviously a confidential relationship may exist which does not result in litigation. It is the breach of, or the abuse of that confidential relationship that the courts> are referring to when the term is used. An example of this is found in Ray v. Winter (1977), 67 Ill.2d 296, 304, 367 N.E.2d 678, 682, where the court, in discussing a confidential relationship stated:
"[W]e believe it does support the existence of a fiduciary relationship and its subsequent breach. * * *"
Thus, we will consider the expression "confidential relationship" to refer to a breach of, or undue influence of fraud on the part of the donee where the term is used herein.
The appellant argues at considerable length that a confidential relationship increases the burden of proof on the donee of an inter vivos gift. This may well be true, however, the detailed requirements of an inter vivos gift are not usually gone into in a situation involving a transfer of real property. Cases relating to inter vivos gifts relate primarily to personalty. We do not deem it necessary to discuss the issue of what effect a confidential relationship would have on a transfer of land as we agree with the trial court that there was no such relationship between the mother of the parties and Erna Carlstedt, the defendant.
In 1947 the supreme court of this State, in McCrillis v. Utterback (1947), 397 Ill. 550, 554, 74 N.E.2d 682, 684, considered the question of a confidential relationship between a parent and a child, stating as follows:
"The principles applying to this case are well settled. A fiduciary relationship does not obtain between a parent and a child as a matter of law. [Citation.] The burden of proving facts from which a confidential and fiduciary relationship arises is on the party seeking to set aside the conveyance to establish the relationship. The proof must be clear, convincing and so strong as to lead to but one conclusion. [Citations.] It is aptly said in Dyblie v. Dyblie, 389 Ill. 326, that to prove a fiduciary relation special confidence and trust on one side and dominance and influence on the other must be shown."
1 Applying that case to the one before us we find that the contention of the plaintiff that it is incumbent upon the child involved to prove that no confidential relationship existed is incorrect. The defendant herein states, and correctly so, that in a situation where there is a conveyance to a child, the burden is upon the one contesting that conveyance to prove the confidential relationship and the breach thereof or fraud or undue influence exerted by the child in question.
2 McCrillis v. Utterback is still the law in Illinois. As was stated in Brown v. Moore (1950), 407 Ill. 618, 623, 95 N.E.2d 856, 859:
"A conveyance from a parent to a child cannot be presumed to be the product of fraud or undue influence from the mere fact of the relationship. Fraud or undue influence in ...