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In Re Estate of Payton

OPINION FILED DECEMBER 20, 1979.

IN RE ESTATE OF ROBERT PAYTON, INCOMPETENT. — (JAMES D. GRIFFITH, SPECIAL ADM'R OF THE ESTATE OF ROBERT PAYTON, PETITIONER-APPELLEE,

v.

MARTHA PAYTON, RESPONDENT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY J. KOGUT, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Martha Payton, respondent, has brought this appeal from the judgment of the circuit court finding that certain transfers of property owned by Robert Payton into joint ownership with her were invalid because Robert was not competent at the time he made the transfers. Respondent contends that she was denied a fair trial on the issue when the trial court: (1) erroneously submitted to the jury verdict forms requiring them to make a single determination as to Robert's competency; (2) excluded certain testimony on the grounds that it was barred by the Dead Man's Act (Ill. Rev. Stat. 1977, ch. 51, par. 2), and the attorney-client privilege.

We reverse and remand for a new trial.

On February 14, 1978, Robert Payton was adjudged incompetent and Martha Payton, his wife, was appointed conservator of his estate and person. The same day Joseph Payton, Robert's nephew, filed a petition pursuant to article XVI of the Probate Act of 1975 (Ill. Rev. Stat. 1977, ch. 110 1/2, art. XVI), in which he alleged that Robert was incompetent when he transferred certain assets into joint ownership with his wife and when she took out a life insurance policy on his life, paid for out of one of those assets, a checking account. Joseph sought issuance of a citation for the return of those assets and the appointment of James Griffith as special administrator to represent the estate of Robert Payton. Griffith, hereinafter petitioner, was so appointed, the citation to recover assets was issued, and subsequently a jury trial was held.

Although respondent does not challenge the sufficiency of the evidence, resolution of the issues she raises requires a summary of that evidence.

The parties stipulated at trial that the following transactions, occurring between April 5, 1974, and December 31, 1975, were at issue:

1. Transfer of the following bank accounts into joint tenancy with Martha Payton:

(a) a savings account at Rogers Park Prudential;

(b) a checking account at First National Bank of Evanston;

(c) two savings accounts at State National Bank;

2. Transfer of the title to the marital home at 1808 Hovland Court, Evanston, Illinois, into joint tenancy with the right of survivorship between Robert and Martha Payton;

3. Transfer of 15 acres of land in Van Buren County, Michigan, into tenancy by the entirety between Robert and Martha Payton;

4. Transfer of interest in an Investor's Diversified Services Certificate;

5. Application and initial payment of premium on a Continental Western Life Insurance policy on ...


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