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Franciscan Sisters Health Care Corp. v. Dean





Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Vermilion County, the Hon. Carl A. Lund, Judge, presiding.


Defendant John R. Dean prepared Mrs. Elizabeth Messmer's final will on February 7, 1978. After making two small specific bequests the will further provided:

"All the rest and residue of my estate, personal and mixed, I give, devise and bequeath in equal parts among them to St. Elizabeth Hospital of Danville, Illinois and my long time friend and advisor John R. Dean, or his heirs."

Mrs. Messmer died in St. Elizabeth Hospital on April 10, 1979, at the age of 97, and the will was admitted to probate shortly after Mrs. Messmer's death. The hospital's and Dean's shares were each worth approximately $130,000. The plaintiff, Franciscan Sisters Health Care Corporation, doing business as St. Elizabeth Hospital, filed suit, seeking to invalidate the entire will, alleging that Dean as the attorney who drafted the instrument had presumptively exercised undue influence in obtaining his legacy. Mr. Dean admitted in his pleadings and stipulated at trial that a presumption of his undue influence over the testator had been raised. Finding that Dean had not overcome the presumption of undue influence, the circuit court of Vermilion County invalidated the will. Dean appealed that decision and argued before the appellate court that the trial court had misunderstood the effect of the presumption and that the evidence he presented rebutted it.

The appellate court, in a split decision, concluded that the evidence was sufficient to rebut the presumption but that the inference of undue influence remained. The appellate court remanded the cause to the trial judge as the trier of fact to assess the strength of the evidence. (102 Ill. App.3d 61.) We granted the plaintiff's petition for leave to appeal (73 Ill.2d R. 315). We now affirm the decision of the appellate court.

Because the strength of the evidence is a primary focal point in this appeal, we find it necessary to carefully review the evidence adduced at trial. At the outset, the parties agreed that an attorney-client relationship existed between Dean and Mrs. Messmer and that he had prepared the contested will and had it typed in his office. Because Dean received a substantial legacy under the terms of the will, the circuit court judge ruled that there was a presumption of undue influence before any testimony was heard.

Mr. Dean had known Mrs. Messmer long prior to the day the contested will was prepared. They had known each other socially for over 20 years. He acted as Mrs. Messmer's lawyer for the last few years of her life. Dean and his family had vacationed with the testator, dined with her, and visited her on holidays.

After preparation of the will in Mr. Dean's office on February 7, 1978, Dean went down the hall to the offices of attorney Edward Litak. Dean informed Litak that he had prepared a will for a client in which he, Dean, was quite a substantial beneficiary and that he wanted Litak and his secretary, Julie Hembrey (18 years old) to witness the will and to talk to the testator about it.

Dean then went back to his office and brought Mrs. Messmer to Litak's office. After introducing Mrs. Messmer to Mr. Litak, he left the office. Mr. Litak and Ms. Hembrey spent the next 15 to 20 minutes asking Mrs. Messmer if she understood what she was doing and if she knew that Mr. Dean was receiving a substantial amount.

Both Mr. Litak and Ms. Hembrey testified that they believed that at the time Mrs. Messmer executed the will she was of sound mind, acting freely and voluntarily, and under no duress of any kind. The will was executed in Litak's office after their conversation. Ms. Hembrey then went and notified Mr. Dean, who subsequently returned to Litak's office. Mrs. Messmer and Mr. Dean then left together.

Shortly after the execution of the will, Mrs. Messmer moved to a nursing home, where she remained confined for several months, up until approximately two days before her death. While the Dean family's social contacts with Mrs. Messmer remained substantially the same for 20 to 25 years, the family did visit Mrs. Messmer more frequently during the last three months of her life.

About six days before she died, Mrs. Messmer became upset with Mrs. Dean as the result of a conversation they had at the nursing home. Mrs. Messmer wanted around-the-clock nursing care because she was nearly blind, could not see to feed herself, and had difficulty swallowing. Mrs. Dean indicated to Mrs. Messmer that it was not necessary to spend that kind of money since she was being adequately taken care of at the nursing home.

Shortly thereafter Mrs. Messmer asked a nursing home employee to call Mr. Robert B. Acton, an attorney who had formerly represented her and whom she had known for many years, for the purpose of asking him to come to the nursing home. Mr. Acton came and spoke with Mrs. Messmer. According to Mr. ...

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