APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY
KOGUT, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Respondent, Sam Ariola, Jr. (proponent), appeals from an order denying his motion to vacate the summary judgment of November 14, 1977, which declared the will of Saverio Ariola, Sr. (testator), null and void because it was procured by proponent's undue influence. It appears that a similar will contest is being pursued in Florida realty. Because of the effect an unfavorable judgment in Cook County would have in the Florida proceeding, proponent appeals the denial of his motion to vacate the summary judgment. Proponent raises three issues on appeal: (1) whether summary judgment was proper; (2) whether his answer to the motion for summary judgment was properly stricken; and (3) whether the court properly denied his motion to amend the petition for probate and the petition to dismiss probate.
We affirm in part, reverse in part, and remand. The pertinent facts are as follows.
Saverio Ariola, Sr., died on December 24, 1975, in Cook County, survived by seven adult children, one of whom died on March 14, 1976. On December 28, 1976, proponent, the youngest child of the decedent, filed a petition for probate of his father's will. This will devised realty located at 808 North 23rd Avenue in Melrose Park, Illinois, to the seven children of testator or to those surviving him. It also devised a 20-arce parcel located in Fort Lauderdale, Florida, and all the rest and residue of his estate to proponent or to his sister, Josephine Ariola, if proponent predeceased testator. It appears from the record that the Florida realty was worth approximately $200,000 and nearly constituted the entire probate estate.
This will was admitted to probate on January 31, 1977, and proponent was appointed executor of the estate. On July 19, 1977, four of testator's children, Philip Ariola, Anna Eboli, Mary DeChiaro and Antonette DiLillo (hereafter contestants), filed a petition to contest the validity of the will. Contestants claim that the will was drafted and prepared by Sidney Tarkoff, an attorney who had represented proponent in previous business matters. Proponent was allegedly the only person who communicated with Tarkoff regarding the testamentary dispositions of the will, and testator had never spoken to Tarkoff regarding the will until he signed it on November 9, 1964. It was alleged that the will was executed in Tarkoff's office and had been completely prepared before testator arrived, except for minor additions. The petition further alleged testator was 85 years old when he signed the will and could not read or write or speak or understand English; that proponent explained the provisions to his father in Italian, since Tarkoff spoke no Italian; after the will was executed, Tarkoff gave the will to proponent who paid the fee; that proponent procured the execution of the will through an abuse of the special trust and confidence reposed in proponent and through the exercise of undue influence; and that the will was not the free and voluntary act of the testator.
The petition also stated that the Melrose Park property had been held in joint tenancy between testator and his seven children since 1950, and that it passed by survivorship and was not subject to probate under the will.
Proponent filed an answer and a jury demand. In his answer he denied that he engaged Tarkoff to prepare the will, that he supplied the information to Tarkoff, that his father could not speak English, and that his father had a special trust in him. He also generally denied all allegations of undue influence. As an affirmative matter he alleged that the joint tenancy in the Melrose Park property had been created by fraud; that he brought a separate action to set aside the 1950 deed because of fraud or in the alternative for a partition of the property; and that his suit to set the deed aside was dismissed but the partition was allowed.
In answers to interrogatories proponent again denied that he supplied any information or directions to Tarkoff about the beneficiaries or disposition of his father's property and stated that testator had told Tarkoff his testamentary plan.
The contestants moved for summary judgment attaching the discovery depositions of proponent and Tarkoff. The motion included the verified affidavit of the attorney who took the depositions.
The depositions of Tarkoff described the circumstances surrounding the drafting and execution of the will, relevant portions of which follow:
"Q Who first communicated with you with respect to the preparation of the document?
Q And who gave you directions as to the provisions to be included in the Will?
A Sam Ariola. Sam Ariola, Jr.
Q Did anyone besides Sam Ariola, Jr., give you any information or directions as to the provisions to be included in the Will?
Q Then would it be correct to say that Sam Ariola, Jr., was the only person who instructed you as to the provisions of the Will of which you have a copy before you as Exhibit 2?
Q Did Sam Ariola, Jr., in the directions he gave you, furnish the address on some property, a twenty-eight-tract, in Florida, which is described in the Will?
A Yes. I received the information from him.
Q And did he also tell you that he was to be beneficiary of this property under the Will?
Q Did Sam Ariola, Jr., and his father Saverio Ariola, come to your office together on November 9, 1964?
Q And at that time was the Will prepared in its own entirety, already typed, that is, except for the phrase in the top line: `Also known as Saverio Ariola'
Q and except for the date, the Ninth Day of November, 1964?
A Let me see the date on that (indicating). I believe so, yes.
Q Did you at any time hand the original of the Will or any copy of it to Saverio Ariola for him to read?
Q Did you read the Will aloud to Saverio Ariola?
A I started to read it. And then Sam Apparently, either the father couldn't get through to him, and so, Sam read it in Italian to him, in Italian, apparently.
And when he got through, and I looked at the father and I said: `Okay?'
And then I said: `Sign it.'
Q Did you read the Will aloud to either Sam Ariola, Jr., or to Saverio Ariola, the father?
A I went over it with Sam.
Q Did you discuss the Will ...