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In Re Estate of Basich

OPINION FILED DECEMBER 31, 1979.

IN RE ESTATE OF LOUIS BASICH, DECEASED. — (CONSUL GENERAL OF YUGOSLAVIA ET AL., PLAINTIFFS-APPELLANTS,

v.

PALMINA THOMAS ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND E. TRAFELET, Judge, presiding.

MR. JUSTICE RIZZO DELIVERED THE OPINION OF THE COURT:

This action was brought to contest the validity of the will of Louis Basich on the grounds of undue influence, lack of testamentary capacity and breach of a contract to make mutual wills. The complaint was filed by the Consul General of Yugoslavia as representative of seven beneficiaries of an earlier will of Louis Basich. The case was tried before a jury and at the conclusion of plaintiffs' case, the judge granted a directed verdict and entered judgment in favor of defendants on all three grounds. We reverse and remand.

In 1969, Kate Basich, wife of Louis Basich, contacted Mary Peresin, an attorney, to discuss the preparation of wills. When Peresin came to the Basich home, she realized they had not yet agreed on the beneficiaries, and so she left. Kate called Persin again at the end of 1971, but she left without drafting the wills because the Basich couple still disagreed about the beneficiaries. Peresin again went to the Basich home in March 1972, at which time an agreement was reached. The Basich couple decided that the survivor was to receive certain property and, upon the survivor's death, the remaining property was to be divided equally among three nephews of Louis and four nieces and nephews of Kate. The Basich couple explained to Peresin that if one of them survived, they intended that the other could not change the will.

Peresin later prepared mutual wills in which each spouse left all property to the surviving spouse. In the event the other spouse did not survive, each will provided that the property was to be divided among the nieces and nephews Louis and Kate had named. Peresin translated the wills into Croatian before they were signed; the Basich couple had a limited knowledge of English. The mutual wills were executed on May 7, 1972.

In the spring of 1974, Louis was hospitalized and underwent surgery. Palmina Thomas, Louis' niece from Canada who was not named in the 1972 will, was in Chicago at this time. On April 7, 1974, Tony Mornar received a telephone call from Palmina asking him to come to the Basich home since Kate was not feeling well. Mornar was a friend of the Basich family and an officer of their bank; he helped them with their banking business and payment of their bills on a regular basis since Louis suffered a stroke in the mid-1960's. Mornar came to the Basich home and tried to convince Kate to go to a nursing home, but she refused.

On April 10, 1974, Mornar received another telephone call from Palmina. She had found the Basich's will and was very upset that she was not named in either will. Mornar explained that the wills expressed the Basich's wishes and then gave her the name of the attorney who drafted the wills. Later that day, Palmina called Peresin and asked her how she could have excluded Palmina and her brothers in the wills. On that same day, Mornar made arrangements for Kate to enter a nursing home.

On April 11, 1974, David Beran, an attorney, was called to the home of his cousin. At his cousin's house, he met Palmina; Palmina told Beran her uncle wished to speak to him regarding a will. Palmina and Beran then went to the hospital to see Louis. According to Beran, Louis asked him to draft a will.

Mornar went to the hospital to see Louis on April 12, 1974. He testified that Louis did not recognize him at first and then introduced him as his son. When Mornar told Louis that corns and bunions on Kate's feet were removed, he began to cry, thinking that his wife's feet had been cut off. On the next day, Mornar received a call from the nursing home informing him that Palmina wanted Kate to sign a document; he referred the call to Peresin.

At about this same time, Peresin received a call from Mornar, informing her that several people were at the hospital with Louis asking him to sign some papers. Peresin then called Kate to ask if she was aware of this situation. Kate replied that she did not know anything about it, and she hoped they would not prevail upon her husband to make any changes in his will or sign any papers. Kate asked Peresin to call Louis; Peresin called but was unable to speak to him. Instead, she asked the nurse to tell Louis his wife said not to sign any papers.

On April 23, 1974, Palmina went to the office of the public conservator and guardian of Cook County and signed a petition requesting that Louis be declared incompetent. The petition requested that she be appointed conservator of his person and that Margaret Terrell, the public guardian and conservator of Cook County, be appointed as conservator of his estate.

Palmina called Mornar on April 26, 1974, instructing him to disassociate himself from the Basich couple. On April 29, 1974, Palmina went to Beran's office to discuss the will; Louis was not present.

Kate Basich died on May 6, 1974. On May 9, 1974, Palmina was appointed conservator of the person of Louis Basich. Attached to the petition for conservator was an affidavit dated May 6, 1974, stating that Louis was physically and mentally incapable of managing his person and estate due to generalized arteriosclerotic vascular disease. In particular, it stated he had cerebral vascular myocardial problems manifested by mental confusion, incompetency and lack of comprehension. Seven days later, on May 16, 1974, Louis executed a new will, naming Palmina as sole beneficiary. He signed the will at home.

On the day after the execution of the will, Mornar visited Louis. Palmina was caring for Louis after his release from the hospital and was present at the time of his visit. Mornar testified that Louis acted "childlike and giddy" after Mornar tried to console him about the death of his wife. Louis said he wanted to go dancing when his health improved. He also commented that Palmina would not feed him if he did not listen to her. Mornar stated that Louis' actions at this time were contrary to his normal behavior.

A few days after the execution of the will, Thomas Hayden, who identified himself as Palmina's attorney, went to see Gordon Reinhard, an attorney who represented the public conservator and guardian's office. Because Reinhard expressed doubts regarding the execution of a will by Louis, Hayden suggested that an updated medical opinion be obtained. An updated medical opinion, dated May 20, 1974, was received by the public conservator and guardian's office. In the report, the doctor stated that Louis was very alert and oriented; he also said Louis improved physically as a result of surgery. The doctor also stated that Louis was capable of making decisions. No petition ...


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