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In Re Estate of Kietrys

OPINION FILED JANUARY 28, 1982.

IN RE ESTATE OF RAYMOND KIETRYS, DECEASED. — (LAWRENCE KIETRYS, PETITIONER-APPELLANT,

v.

WILLIAM S. KLIETSCH, JR., EX'R OF THE ESTATE OF RAYMOND KIETRYS, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR C. PERIVOLIDIS, Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Petitioner, Lawrence Kietrys, appeals the grant of summary judgment in a will contest in favor of respondent, William S. Klietsch, Jr., who is the executor of the estate of Raymond Kietrys. The sole issue presented for review is whether there existed a genuine issue of material fact as to the competency of the testator, Raymond Kietrys.

We affirm.

On December 19, 1978, Raymond Kietrys died, leaving as his heirs his sister, Irene Barone, his brother, Lawrence Kietrys, and his nephews, Richard, Robert and Raymond Kietrys. A will dated August 27, 1977, provided for the division of all his property between Irene Barone and Lorraine Klietsch. Lorraine had been raised as a daughter by Kietrys' parents, but she had not been formally adopted. On May 30, 1979, Lawrence Kietrys filed a petition for contest of will alleging that decedent was of unsound mind and memory, and that decedent had suffered from chronic alcoholism and did not have the mental capacity to know the nature or extent of his property, the natural objects of his bounty and his relations with them, or the disposition he wished to make of his property. Lawrence also alleged that Lorraine and William S. Klietsch, Jr., the executor, unduly influenced Raymond in making his will. Respondent's motion for summary judgment was granted on December 3, 1980, and petitioner appealed.

Affidavits submitted by respondent Klietsch established the following.

John W. Dubbs III is the attorney who drafted the will of Raymond Kietrys and witnessed its execution on August 27, 1977. In June or July 1977, Raymond telephoned Dubbs and said that he wished to change the executor of his will. Raymond had been an executor for an estate and thought that being an executor was not too difficult although time consuming. He saw no reason why Pioneer Bank should collect a large fee for being executor when William Klietsch, Jr., could handle the estate. Klietsch is the son of Lorraine Klietsch, a beneficiary under the will.

In July 1977, Dubbs met with Raymond to discuss the will. Raymond said that he had not named his brother, Lawrence, as a beneficiary because Lawrence had enough money. Raymond treated both Irene Barone and Lorraine Klietsch as sisters and thought they needed the money more than Lawrence. He saw no reason to leave anything to his nephews, sons of a deceased brother, because he had not seen them for several years. Later, Dubbs rewrote the will with basically the same provisions as an earlier will dated May 12, 1973, but naming a different executor.

On August 27, 1977, Raymond met John Dubbs III at his father's office, where they reviewed the provisions of the will. Kietrys acknowledged the will and signed it in the presence of four witnesses: John Dubbs III, John Dubbs, Jr., Patrick J. Calihan, all attorneys, and Dean J. Polales, a law student. There was general conversation involving Raymond before and after the will was signed.

According to the individual affidavits of these witnesses, Raymond was neatly dressed and groomed. His posture was erect and he walked and moved without assistance in a coordinated manner. His statements were clear, logical and relevant to the topics discussed. There was no odor of alcohol about Raymond, and he was not intoxicated. In the opinion of all the witnesses, Raymond was of sound mind and memory when he signed the will.

Respondent submitted affidavits from Raymond's co-workers. John Januck, Harold Sewick, John Jarosz and Edward Carfora worked at Fruehauf Corporation where Raymond had been continuously employed as a mechanic for 27 years. They had either daily or weekly contact with Raymond. In discussions with him, he was always rational, clear and logical. Januck, in his role as service manager, observed Raymond almost every day from 1970 through 1978 and spoke with him several times each week. He described Raymond as a good, steady worker who received regular raises. In the opinion of all these co-workers, Raymond was of sound mind and memory whenever they had contact with him.

Respondent submitted affidavits which established Raymond's business dealings.

Robert H. Mohs became Raymond's stockbroker in November 1977. He described his business relationship with Raymond. In Mohs' opinion, Raymond demonstrated an average degree of sophistication for an investor. Raymond even understood options trading, which some investors do not understand because it is more technical and involves a more sophisticated analysis.

Manuel Solotke, an attorney, represented Raymond on real estate matters from April 1975 to October 1977. He stated that Raymond was always able to discuss business matters in a rational and coherent manner.

Gerald L. Wadleigh, who bought real estate on contract from Raymond, had contacts with him from 1969 through October 1977 and always found him coherent, alert and logical. Wadleigh believed that Raymond was ...


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