APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Jean V. Stuhlfauth died on March 19, 1976, and on April 13, 1976, Thomas J. Kelly petitioned the Circuit Court of Kankakee County to admit her will and codicil to probate. After the circuit court had admitted both the will and the codicil, petitions to have the instruments declared void were filed by Richard G. Stoval, decedent's son, and by Virginia Soda, decedent's niece. The thrust of the allegations in both the Stoval and Soda petitions was that the decedent lacked testamentary capacity and was subject to undue influence at the time she executed the will and again when she executed the codicil. A hearing was held during which evidence was heard in support of the Stoval and Soda petitions following which the trial judge concluded that the allegations were unproven and the petitions should be dismissed. Mr. Stoval appeals the determination reached below.
Prior to her death Jean V. Stuhlfauth had a long association with the family of Thomas J. Kelly. Thomas J. Kelly's father was the decedent's attorney for many years, and Thomas J. Kelly succeeded his father in the same capacity. Thomas J. Kelly's services to the decedent extended beyond the scope of a mere legal advisor to the point where he became Mrs. Stuhlfauth's confidante and friend. Attorney Kelly spoke by telephone with his client in over a hundred conversations during the period he represented her from 1968 to 1976. These conversations included topics such as income taxes, investments, the decedent's fears and apprehensions, and the decedent's family. It is apparent from the evidence of letters and phone calls that attorney Kelly was an important sounding board for Mrs. Stuhlfauth regarding a wide variety of her concerns, only some of which could be said to be legally related.
The record also reveals that the decedent, Mrs. Stuhlfauth, was a troubled woman. In 1965 Jean V. Stuhlfauth was divorced from petitioner Stoval's father. The record suggests that the decedent was bitter about the divorce and that she blamed both her ex-husband and her son for an involuntary commitment for mental treatment she had previously undergone. Further, the decedent, after release from commitment, reported from time to time to friends and associates that an unidentified "they" were out to "get her" and "they" followed her from one location to another with "poisonous fumes." The sinister "they" were never identified, and their alleged efforts to harm Mrs. Stuhlfauth with poisonous fumes were never corroborated.
Aside from the decedent's apprehensions about unidentified enemies, the record reflects a pattern of behavior exhibited by decedent that is hardly extraordinary. She lived alone and took care of her affairs without incident. She paid her rent promptly, did her own banking, kept an orderly house, and prepared her own meals. She was aware of the stock and securities she owned and made inquiry when dividends were unpaid. The decedent recognized her obligation to pay income tax and caused returns to be prepared and filed on her behalf.
The evidence adduced below suggests that the close relation between Mrs. Stuhlfauth and her attorney, Thomas J. Kelly, combined with the strained relation between Mrs. Stuhlfauth and her son, caused the decedent to approach her attorney concerning drafting of a will that would name her attorney, Mr. Kelly, as the sole beneficiary. According to Mr. Kelly's uncontradicted testimony, this request was flatly refused on more than 10 occasions. Alternatively, the decedent suggested a testamentary plan that would benefit attorney Kelly's son. Again, according to the uncontradicted testimony of Mr. Kelly, this request was similarly refused. Excerpts from a letter of April 22, 1973, in the handwriting of the decedent read as follows:
"Tom, I would like to make a Will out. Your father started and didn't finish. The last time I talked to Atty Liffshin, he told me I could make out a will and leave nothing to my son. Tom, I would like to make out my Will leaving everything to your family. My sister was married to Mark Conboy. He has past [sic] away. Pete Conboy's funeral home is on North Ave. He buried my mother. There is a plot next to my mother. My sister told me I could have it. I am not sure, I think Pete Conboy has the deed. The Cemetery Mount Carmel. I would like Pete Conboy to take care of my burial."
Mr. Kelly responded by urging the decedent that the appropriate object of her testamentary beneficence was her son, the petitioner here.
Mrs. Stuhlfauth was undaunted by the refusals of attorney Kelly and she sought from friends and neighbors the name of another attorney. These inquiries led the decedent to the office of Edwin O. Daw, like Mrs. Stuhlfauth a resident of Riverside, Illinois. When Mr. Daw was apprised of the testamentary plan preferred by the decedent, he too suggested that a more appropriate object of her bounty would be her son, the petitioner here. At attorney Daw's suggestion, no action was taken regarding the will on decedent's first visit and by agreement she returned home and considered again the appropriateness of her designs.
Unperturbed, the decedent returned some days later to the office of attorney Daw and renewed her request that he draft a will on her behalf which named attorney Kelly's son as the primary beneficiary. At this time attorney Daw complied, but not without first contacting attorney Kelly by phone. There is no evidence in the record to dispute the testimony of both Daw and Kelly that this phone conversation was the first time the two had ever had contact with one another, in person, by letter, or otherwise regarding this or any other matter, business, personal or social. In this first conversation attorney Kelly urged his professional colleague to counsel Mrs. Stuhlfauth against the testamentary action she was contemplating.
Mr. Daw was unable to dissuade the testatrix from the course she was set upon, and finally he acquiesced to her wishes and drafted an instrument naming attorney Kelly's son as her primary beneficiary and establishing a guardianship to administer the bequest to the minor legatee. Attorney Daw mailed the will to his client along with a cover letter explaining the procedure for executing wills. Although it was his customary practice to execute wills in his office, attorney Daw explained that this exception from the normal procedure was at the express request of the decedent.
Mrs. Stuhlfauth regularly conducted business at the Riverside National Bank, where her acquaintance of 25 years, Mr. Reed G. Hemminger, was employed. Mr. Hemminger had operated a pharmacy in Riverside prior to his association with the bank and the decedent patronized both establishments. Mr. Hemminger had helped the decedent occasionally since her divorce, and from time to time Mr. Hemminger's wife brought soup and other things to the decedent during the same period. It was to the Riverside National Bank and to Mr. Hemminger that the decedent brought her will on January 24, 1974. When Mr. Hemminger learned of the testamentary plans contained in the Daw will, he joined others in advising against such a scheme of disposition, but Mrs. Stuhlfauth persisted. She said that she wanted Mr. Hemminger and Lawrence Dolosic to be witnesses to her will. Mr. Dolosic was a teller for the bank whom the decedent had grown very fond of and whom she specifically requested to sign her will. Eventually Mrs. Stuhlfauth prevailed and the will was executed.
Following the signing of the will in the Riverside National Bank, attorney Kelly received by mail from Mrs. Stuhlfauth a fait accompli, viz., an executed copy of the will he refused to draft and condone. The trial court concluded that this will was not the result of undue influence exerted upon Mrs. Stuhlfauth by attorney Kelly. We agree.
• 1 Undue influence arises when the dispository provisions of a will are more the will of the ...