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Franciscan Sisters Health Care Corp. v. Dean





APPEAL from the Circuit Court of Vermilion County; the Hon. CARL A. LUND, Judge, presiding.


___ N.E.2d ___ Defendant Dean, a lawyer, drafted what turned out to be Elizabeth Messmer's final will February 7, 1978; after making two small specific bequests Messmer gave the residue of her estate to Dean and St. Elizabeth Hospital, the plaintiff, in equal shares. Messmer died in St. Elizabeth Hospital April 10, 1979, at the age of 97, and the will was later admitted to probate. According to the estate's Illinois inheritance tax return, Messmer died owning property and money worth almost $300,000; schedule E of the return shows that the hospital's and Dean's shares were each worth approximately $130,000. The plaintiff filed this suit to contest the will, alleging that Dean as drafter presumptively had exercised undue influence in obtaining his substantial legacy. The plaintiff sued to invalidate the entire will and not just Dean's legacy (cf. Williams v. Crickman (1980), 81 Ill.2d 105, 405 N.E.2d 799 (permitting partial invalidation of wills)). Finding that Dean had not overcome the presumption of undue influence, the trial court invalidated the will. Dean appeals this decision, arguing that the trial court misunderstood the effect of the presumption and that his evidence rebutted it and supports the will.

At the outset of the trial the parties agreed that the pleadings admitted the existence of an attorney-client relationship between Dean and Messmer and that the will in question had been typed in Dean's office. The trial court entered orders of default as to the recipients of the two specific bequests, Chapman, who died before the start of the trial, and Castle, and also as to Messmer's heirs. Before hearing testimony the judge declared that the presumption of undue influence was in effect.

Because Dean's appeal focuses on the strength of the evidence adduced at trial, a rather detailed summary of the testimony is necessary; the parties provided a large amount of information regarding Messmer's health during the last several years of her long life and the relationship between Messmer and the Dean family. The plaintiff's first witness was Robert D. Acton, an attorney in Danville who knows Dean. Acton had done legal work for Messmer, including the preparation of two wills, from some time in the 1950s until some time in the 1970s, when he directed her to seek another lawyer because his continued representation of her posed a conflict of interest with his representation of another client. At some point between 1974 and 1979 Acton received a telephone call from Mrs. Messmer; in response he asked Dean to return to him a key to Messmer's safe deposit box; Dean did not do this. Acton saw Messmer April 3 or 4, 1979, at the Americana Nursing Home in Danville; according to Acton she told him, "`I want you to arrange to have the Second National Bank look after my affairs. I want out from under the influence of Mr. Dean and want nothing more to do with him.'" Acton then prepared a power of attorney, which Messmer signed, and delivered it to the Second National Bank of Danville. In the nursing home Messmer was hard of hearing but mentally alert; she was strong-willed. Acton said that Messmer had generally looked after her own business affairs. He also said, though, that Messmer had often received advice on business matters from Norman Dale, a local real estate broker, and that Messmer had generally followed Dale's advice. Acton said that "by someone Messmer trusted she was easily influenced." In the two wills that Acton drafted for Messmer he had disposed of the property according to her instructions.

Kathy Omahen, who worked at the nursing home, was in the same room when Acton visited Messmer in April 1979; Omahen had telephoned Acton at Messmer's behest. Omahen confirmed what Acton testified to regarding his visits.

Viola Kersey, a private nurse, was in the nursing home with her patient when Acton stopped by to talk to Messmer. Kersey testified that Messmer told Acton that she wanted him to assume the management of her financial affairs; Acton asked, "`Are you sure? Mr. Dean has been your business advisor for awhile.'" Messmer said that she was sure, and at that point Kersey left the room. The day when Kersey heard this conversation Messmer appeared disturbed about a recent matter: Mrs. Dean had visited Messmer several days earlier and had been rude to her; they had argued whether Messmer should live at home and pay persons to stay with her. Kersey did not know whether Messmer was still upset about that the day she talked to Acton.

Don Fuller, vice-president, trust officer, and counsel for the Second National Bank of Danville, testified; he identified several exhibits, including a power of attorney signed April 5, 1979, authorizing him to transact certain business matters for Messmer.

Bessie K. Castle had lived across the street from Messmer since 1940 and was to receive a specific bequest under the will involved here. Castle testified that her friendship with Messmer became closer after Messmer's 90th birthday in 1971 or 1972, and that during the last two years Messmer was alive Castle visited her daily. According to Castle, the Dean family began to visit Messmer and dine out with her after Dean wrote a will for her, and these visits continued through the last year of Messmer's life; Messmer considered Dean a very competent attorney. Mrs. Dean usually was the one to telephone Messmer to invite her out. Castle testified that Messmer had regarded these calls as a nuisance and had generally declined the invitations; even when Messmer accepted them she would make a face as she talked on the telephone. Castle also testified that Messmer's mental and physical condition had remained about the same from 1972 until shortly before her death and described her as intelligent and opinionated. In the early 1970s Messmer did not have any close friends in Danville; one friend lived in Waukegan and another in Rockford. Castle also referred to trips that Messmer and the Deans had taken together during the 1950s. Messmer and the Deans' daughter went to Puerto Rico, and Messmer went to Florida with the entire family. After the 1950s Messmer traveled with others and was "off the Deans." On Messmer's 97th birthday the Deans took a cake to her house. Messmer never spoke to Castle about her wills. The several times that Messmer needed to go to a hospital she went to St. Elizabeth.

The defendant's first witness was Edward Litak, who is an attorney in Danville and has known Dean since about 1950; the two men are acquaintances rather than friends. Litak testified that he spoke to Messmer February 7, 1978, regarding her will. That day Dean went to Litak's office and asked him to witness a will that he, Dean, had drafted and that made him a beneficiary; Litak was immediately aware of the potential ethical problem and therefore was determined to interrogate Messmer longer and more thoroughly than he normally interrogates testators and testatrices. Litak called in his secretary, Julie Hembrey, and explained to her what he intended to do and advised her to listen carefully. Dean took Messmer and the will to Litak's office, introduced Messmer, and then left. For about 15 to 20 minutes Litak questioned Messmer to determine whether the will was voluntary and whether she was aware of the large legacy to Dean. Litak did not, however, discuss with Messmer the size of the legacy beyond referring to it as "substantial." Messmer understood that it was a large amount and explained that she was giving it to Dean because he was her attorney; she also said that she did not have any relatives to leave anything to. Litak repeated his questions but in different forms; he testified that she had the opportunity to reveal any impropriety in the preparation of the will but did not mention anything. Litak's questions concerned whether the will was voluntary, whether Messmer realized that Dean stood to receive a large amount under it, and whether she had been pressured into this. Litak did not read each provision of the will to Messmer; he explained at trial that when he witnesses a will he prefers not to discuss the dispositions because frequently persons do not like to reveal their financial matters to strangers. Thus he did not read the will to Messmer paragraph by paragraph and did not read it to himself; he did not know that Castle and Chapman were to receive bequests. During the interview Litak handed the will to Messmer for her to read. Litak did not advise Messmer about the tax consequences of the will or the role of an executor — the will named Dean executor. Litak also did not tell her about the ethical problems that arise when a lawyer drafts a will that makes him a beneficiary. Litak did, however, ask Messmer whether she knew that Dean was a beneficiary of the will, and he may have mentioned the hospital too. Although Messmer did not refer to the dispositions of her earlier wills, Litak was left with the impression from his conversations that day with either Messmer or Dean that this was the first of her wills to give anything to Dean.

Litak testified to his belief that "without question [Messmer] was acting freely and voluntarily and intelligently." In his opinion Messmer's mind was strong and she was intelligent and determined; when Litak met her he judged her to be in her early or middle sixties. Litak did not notice whether Messmer was wearing a hearing aid and at trial did not recall that she had had any difficulty hearing. Litak was not paid for interviewing Messmer, although he did receive the customary $25 fee for testifying when the will was admitted to probate. At the conclusion of his interview he, Messmer, and Hembrey each signed the will in the presence of each other. After this Litak spoke only briefly with Dean, handing him the document and saying something to the effect that this was the will that had been executed.

Julie Hembrey also testified for the defendant. Hembrey did not hear Dean's initial conversation with Litak. Hembrey had never seen Messmer before nor did she see her later. According to Hembrey, Litak asked Messmer whether the will was hers, whether she realized that she was leaving something to Dean, and whether she was certain that she wanted to do that; Messmer replied affirmatively to all three questions. Litak read aloud the provision in the will concerning Dean. Litak also asked Messmer whether she had any close relatives or friends, other than Dean, that she wanted to benefit, and she said that she did not. Litak asked Messmer whether she and Dean were friends, and she said that they had been friends for about 20 years and that Dean was her attorney. Litak repeated these questions several times. At trial Hembrey did not recall any reference during the interview to St. Elizabeth Hospital. In Hembrey's opinion Messmer understood the contents of the will and realized what she was doing; Messmer was very alert, appeared to be younger than 90 years old, and did not have any difficulty walking or hearing. Like Litak, Hembrey received no compensation in connection with this except the witness fee given for her testimony in probate court. At trial Hembrey thought that Litak had referred during the interview to the specific bequests and not just to the provision concerning Dean, yet she did not remember hearing Castle, Chapman, or St. Elizabeth Hospital mentioned.

Dean's daughter, Gwendolyn Fish, and grandaughter, Diana Whitley, also testified in his behalf. Fish and Whitley knew Messmer for about 25 years; Messmer and the Dean family were friends and frequently traveled together; they took their last joint vacation sometime during the 1950s. Throughout the past three decades, and including the last five years of Messmer's life, Messmer and the Deans dined out together, usually about once a month. Their socializing did not increase during the last years of Messmer's life. Messmer gave the Deans gifts; Messmer bought some of these items with the intent to make a gift and bought other items for herself and then decided to give them away when she decided that they were unsuitable for herself. Messmer gave Dean and his granddaughter each a ring. Fish and Whitley visited Messmer in the nursing home about every other week; Dean and his wife visited more frequently. Messmer told Fish and Whitley that she had no relatives.

Dean's and his wife's testimony was presented in an offer of proof; the plaintiff's objection to this was sustained under the Dead Man's Act (Ill. Rev. Stat. 1979, ch. 51, par. 2). Dean does not attack this ruling here.

The plaintiff presented two rebuttal witnesses, Janet O'Rourke and Neils Neilson. O'Rourke lived next door to Messmer for 10 years; O'Rourke did not specify which ten. According to O'Rourke, Messmer was "small and frail" and hard of hearing and could not see well; these problems worsened during the 10 years the two women were neighbors. Because O'Rourke was frequently in her kitchen, where she could see Messmer's yard and driveway, she often saw who was visiting Messmer. Castle went to Messmer's home every day, and Chapman, who mowed the lawn, stopped by almost as frequently. A friend from out of town visited Messmer about once a year. O'Rourke saw Dean there "very occasionally"; he visited more frequently during the last year of Messmer's life. O'Rourke did not remember ever seeing Fish or Whitley next door.

Neils Neilson lived across the street from Messmer for an unspecified length of time. After the death of Messmer's former advisor, Norman Dale, Neilson assumed that role. Several times Neilson's own business matters led him to have business dealings with her. At trial Neilson described Messmer as "an amazing woman up until four or five years ago, I would say"; although she was small and frail, she was strong until that time. Her loss of hearing was "quite advanced," and despite her hearing aid one had to speak to her loudly. Like O'Rourke, Neilson was able to see who visited Messmer; Castle and Chapman were daily visitors; Dean visited, "particularly a year or so before [her] death."

The trial court admitted into evidence previous wills signed by Messmer; although Dean objected at trial to their admission, he does not dispute that here. Previous wills containing testamentary schemes that conflict with that of the contested will are admissible evidence of growing influence; their use is limited to this purpose. (Blackhurst v. James (1922), 304 Ill. 586, 136 N.E. 754; Kelley v. First State Bank (1980), 81 Ill. App.3d 402, 401 N.E.2d 247.) In her immediately preceding will dated September 22, 1975, Messmer gave Dean her safe or vault and all its contents. On March 4, 1976, she executed a codicil to that will, naming Dean executor in place of the Second National Bank of Danville. Messmer's wills of March 10, 1972, and November 25, 1974, do not mention Dean.

On October 16, 1980, the trial judge entered his written order. After summarizing the evidence and discussing the presumption of undue influence he concluded that Dean had not overcome the presumption and declared the will invalid. The judge also said:

"In making this finding, the Court, as fact finder, realizes the evidence would not have been sufficient to upset the will if the presumption was not in existence. The Court, however, recognizes ...

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