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In Re Estate of Mooney

OPINION FILED SEPTEMBER 7, 1983.

IN RE ESTATE OF THOMAS E. MOONEY, DECEASED — (AGNES I. MOONEY, PETITIONER-APPELLEE,

v.

JOHN M. MOONEY, INDIV. AND AS EX'R OF A PURPORTED LAST WILL AND TESTAMENT OF THOMAS E. MOONEY, DECEASED, ET AL., RESPONDENT-APPELLANTS).



Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert, Judge, presiding.

JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Thomas E. Mooney died on October 26, 1980, leaving a will in which he left property to two charities, to his brother John, and to his sister Mary. The decedent's sister Agnes Mooney was bequeathed a nominal sum of $100. Agnes Mooney filed a petition to contest the will in the circuit court of Will County, alleging that her brother John unduly influenced the decedent in the execution of the will, or in the alternative, that the decedent lacked testamentary capacity at the time the will was executed. The circuit court jury returned a general verdict finding for the contestant, Agnes Mooney. The executor appeals the jury verdict.

Thomas Mooney was 69 years old at the time of his death. The disputed will, which was filed for probate, provides that after payment of debts, funeral expenses, and costs of administration, bequests are to be made to Agnes Mooney in the sum of $100, to St. Jude Roman Catholic Church in the sum of $10,000, and to Christian Brothers of Lewis University in the sum of $2,500. The will further recites that the testator owns a 5/16th interest in the Mooney family farm, and Thomas Mooney directed that 1/16th of his farm interest be devised to his sister Mary Mooney, and 4/16th to his brother John Mooney. The residuary estate was divided equally between John and Mary, and John was appointed as executor of the will.

The Mooney family farm was located in Joliet, Illinois, and had been owned by the decedent's parents. Thomas Mooney, his sisters Agnes and Mary, his brother John, and his deceased sister Margaret, had been raised on the farm. In fact, John, Mary and the decedent had lived on the farm their entire lives. Agnes Mooney had left the farm as a young adult, and in the intervening years had become estranged from her brothers and sister. Thomas Mooney never married, he had no children, and had a limited elementary school education.

Since 1966, John Mooney had run the family farm. He collected all the farm income and paid the real estate taxes, living expenses, telephone bills, and electric bills. He made decisions as to what crops to plant, when to harvest them, and when to sell them. He managed the affairs of the decedent and Mary Mooney, providing them with funds for whatever in his opinion their needs were. Because the decedent was not licensed to drive an automobile, John Mooney provided transportation whenever that was necessary. In short, John Mooney held a dominant role with regard to his brother Thomas, and Thomas Mooney relied on his brother John in the conduct even of his day-to-day affairs.

In July 1979, Thomas Mooney fell and suffered a broken hip. From that time until his death, except for a brief period the following September, Thomas Mooney required hospitalization or nursing home care. In July of 1980, Thomas Mooney returned to the hospital from the nursing home because of a serious leg ailment. The following month, Thomas Mooney's doctors recommended a partial amputation of his leg to control a gangrenous condition. Thomas Mooney steadfastly refused the advice of his doctors, and declined to consent to the recommended surgery. Thomas Mooney's refusal to follow his physician's advice led his brother John to consult the family attorney, Dominic Boetto. Mr. Boetto suggested that John Mooney petition the court to appoint a guardian for his brother Thomas, a guardian who would have the authority to consent to the recommended amputation. A petition to the court was executed on August 29, 1980, and a preliminary hearing on that petition was held on September 2. At that time John Mooney testified that his brother Thomas had been born with a slight mental defect, and that John had been taking care of his brother's financial arrangements for many years. Following the hearing, the court appointed John temporary guardian of the estate and person of Thomas Mooney. In addition, a hearing was scheduled for September 11, 1980, at the hospital room of Thomas Mooney.

The purpose of the September 11 hearing was to determine whether Thomas Mooney was competent to consent to the surgery which his doctors recommended. As the hearing concluded, it was unnecessary to determine whether John Mooney as court-appointed guardian should have the authority to consent to the recommended amputation, because at that time Thomas Mooney relented from his previous position and voluntarily authorized the surgeons to proceed. The amputation was performed the following day, but the decedent's condition worsened and he subsequently died on October 26, 1980.

Several weeks prior to the September 11 hearing John Mooney approached the family attorney, Dominic Boetto, and instructed the attorney to prepare a will for his brother Thomas. Mr. Boetto followed his instructions based upon information he received from John Mooney. Mr. Boetto never had a conversation with Thomas Mooney in Thomas' lifetime about the preparation of a will, nor did Thomas Mooney ever ask Mr. Boetto to prepare a will for him. When Mr. Boetto had completed the assignment which John Mooney had given him, he took the will to Thomas Mooney's hospital room along with two secretaries from his office. The will was there executed by Thomas Mooney, but subsequently lost.

Shortly afterwards, John Mooney called Mr. Boetto and advised him that the first will had been lost and again instructed Mr. Boetto to prepare a will for his brother. Mr. Boetto complied with this request and drafted a second will which was purportedly identical to the first. Again, Mr. Boetto brought the will he had drafted for Thomas Mooney to the latter's hospital room. On this occasion, the occasion of the September 11 hearing on the guardianship, Mr. Boetto did not cause the will to be executed, but instead he gave the document to John Mooney. Later that day, John Mooney called Fran Hudak and asked Fran to bring his son, Michael Hudak, to the hospital to act as witnesses to the will. John Mooney, the two witnesses, and Thomas Mooney were the only persons present in the hospital room when the document was signed, the document that is now the subject of this contest.

Based on this sequence of events, the Will County jury concluded that the September 11 document was not the last will and testament of Thomas Mooney. The appellants, John M. Mooney and Mary L. Mooney, believe that the conclusion of the jury was against the manifest weight of the evidence.

• 1 The contestant, Agnes Mooney, urged two grounds in the court below as a basis for setting aside the will which was offered for probate. First, she asserted that John Mooney exercised undue influence on his brother Thomas in the execution of the will. Secondly, she asserted that at the time the will was executed, Thomas Mooney lacked testamentary capacity. The jury returned a general verdict, and we are obliged to sustain that verdict if there is sufficient evidence to support either of the grounds asserted below. (Butler v. O'Brien (1956), 8 Ill.2d 203, 133 N.E.2d 274.) With regard to the first ground asserted by the contestant, we note that undue influence arises when the dispository provisions of a will are more the will of the influencer than the testator. In re Estate of Stuhlfauth (1980), 88 Ill. App.3d 974, 410 N.E.2d 1063.

"The circumstances which raise a presumption that a will was executed as a result of undue influence on the testator, and if proved and unrebutted, are sufficient to void the will follow:

(1) a fiduciary relationship between testator and a person who receives a substantial benefit under the will (compared to other persons who have an ...


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