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In Re Estate of Lynch





APPEAL from the Circuit Court of Warren County; the Hon. KENNETH L. BATH, Judge, presiding.


Renunciation of will by conservator.

• 1 The bare-bones record from below is slipshod and slack. But from it we conclude that the trial court erred in permitting the renunciation.

We reverse.

John D. Lynch, Jr., died January 9, 1980, leaving a will and a wife.

His 94-year-old widow's conservator, Citizens National Bank of Macomb, petitioned April 11, 1980, to renounce the will and take her statutory one-third share of his estate. (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 2-8(a).) The conservator also requested a spouse's award of $40,000. (Ill. Rev. Stat. 1979, ch. 110 1/2, par. 15-1.) After hearing evidence July 31, 1980, on the widow's financial needs and health, the trial court granted the conservator's petition to renounce and also made the requested award. The conservator renounced the will August 1, 1980. The respondents question only the decision to permit the renunciation and do not now attack the widow's award.

Lynch signed the will in question July 28, 1979. He left as survivors his wife, Lillian, and two daughters, Virginia Lucille Missavage and Mary Louise Lemoine. Virginia has ten children, six sons and four daughters. Mary has three sons. The bulk of Lynch's estate went to one of his grandsons, David Missavage. In his will Lynch wrote that David "was raised by me and has been considered by me like a son."

The will bequeathed nothing to the four granddaughters or the three Lemoine grandsons and says that "they have been provided for by other means." Lynch gave five of his grandsons — all the Missavage boys except David — $5,000 each, and $2,000 to a Monmouth church.

In the will John Lynch gave Lillian his car, home, personal effects, and household goods. Lynch devised to David Missavage, as trustee, all his real estate except the home; the income from the trust was to go to one of the daughters, Virginia Missavage. Upon her death the trust was to terminate and the assets were to go to David, who was also named executor of the will.

Lillian Lynch was born November 20, 1886. She was declared incompetent November 17, 1978, and a conservator was appointed for her at that time. Unfortunately, the record in this cause does not include the order appointing a conservator. At the time of the hearing on the petition to renounce the will, Mrs. Lynch's health was good; her blood pressure and heart were excellent and the edema in her legs was greatly reduced. Although Mrs. Lynch was able to take care of her physical needs by herself and did some housework and lived at home, it was necessary that someone be with her at all times. Mrs. Lynch died October 30, 1980, and the executor of her estate has been substituted as the petitioner.

• 2, 3 Although a competent person may renounce a spouse's will ex parte, conservators of incompetent persons must be granted leave to renounce, after adversary proceedings. (In re Estate of Dalton (1975), 60 Ill.2d 451, 328 N.E.2d 257.) One relatively simple method for deciding whether a conservator should be allowed to renounce a will is to compare the value of the property that will pass to the surviving spouse under the will with the size of the one-third share of the estate; if the only criterion for the decision is monetary, then the course of action producing the greater amount should be followed. Under that rule the conservator's decision would be predictable and automatic. Illinois does not follow this approach, however, preferring to examine not only the amounts at stake but other criteria as well:

"It is impractical to delineate the factors which would apply in every case or, in fact, the relative weight to be given each in order to determine that which is to the best interest of the incompetent. Certainly the factor of value is important and in many cases would outweigh all others. Adequacy of funds for maintenance, care, medication, nursing, personal needs and comforts under a will as compared to those obtainable by taking against the will must be considered. If adequate and ample provision has been made it seems only equitable and just that a court not disregard the deceased spouse's desires in the disposition of his estate by diverting it to others because the survivor might well have considered this factor. Since the renunciation provision is for the benefit of the incompetent spouse, the interest of the heirs of the surviving incompetent spouse should not be considered." (Kinnett v. Hood (1962), 25 Ill.2d 600, 603, 185 N.E.2d 888, 889.)

Thus, even when the forced share exceeds the amount provided by the will, the courts> will not automatically allow renunciation if the will provides for the spouse adequately. And although renunciation disputes often pit the testator's legatees and devisees against the surviving spouse's heirs or prospective heirs (e.g., Dalton; Rock Island Bank & Trust Co. v. First National Bank (1962), 26 Ill.2d 47, 185 N.E.2d 890), the court examines the financial needs of the surviving spouse only.

The conservator-bank's farm manager and assistant trust officer testified at the hearing on the petition to renounce. According to the farm manager both John Lynch and Lillian Lynch owned farms; his was worth slightly more than a million dollars and hers was worth slightly less than a million. Both were leased to David Missavage for $135 per tillable acre, a rate that the farm manager believed to be fair. The assistant trust officer kept records for the conservatorship. From July 19, 1979, to July 19, 1980, the conservator received income of about $82,000 and spent about $72,000. The income included farm rental and interest and dividends on ...

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