Appeal from the Circuit Court of Moultrie County; the Hon.
Worthy B. Kranz, Judge, presiding.
PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Lack of testamentary capacity.
Procedural questions only are presented.
Affirm and reverse in part, and remand.
Petitioners initiated this suit by filing a petition to contest the will of Billie D. Bailey, alleging unsound mind and memory and undue influence. A motion to dismiss was heard and allowed with leave granted to petitioners to file an amended petition. A memorandum reflecting this decision was filed December 14, 1982, and the written order was filed January 12, 1983, requiring an amended complaint to be filed on or before January 14. Petitioners filed a first amended petition containing two counts on January 20. Count I centered around a cause of action for lack of testamentary capacity, alleging an "impaired mind and memory." Count II centered around a cause of action for undue influence, alleging that decedent's mother had urged him to make the will.
Respondents filed motions to dismiss the first amended petition and they were heard on April 20. On May 13, the trial court filed a memorandum opinion ruling that the motions were allowed, the order was final, there was no just reason to delay an appeal, and called upon the respondents' attorney to prepare and submit a proposed order. On May 17, petitioners filed a motion asking leave to file a second amended petition and a notice of hearing on same for June 1. Prior to the hearing, petitioners filed a tender of a proposed second amended petition and a notice of hearing on same for June 1. This document contained one count only revolving around a claim that decedent lacked testamentary capacity, which alleged the bulk of the previous grounds but also added allegations of lifelong mental retardation as well as claims of delusions and hallucinations on the date of the alleged execution of the will. Respondents filed motions to strike petitioners' motion for leave to file a second amended petition and a notice of hearing on said motions for June 1 also. In these motions, respondents asserted that the first memorandum opinion was a final order and that therefore petitioners have no right to file a second amended petition. Petitioners filed a response to this document asserting that the memorandum opinion was not a final order and therefore they did have a right to seek leave to file a second amended petition.
On June 1, all pending matters were heard and the trial judge made rulings and entered orders as follows: (1) Respondents' motion to strike petitioners' motion to file a second amended petition was allowed; (2) respondents' motions to dismiss the first amended petition were allowed, with a special finding that there was no just reason to delay appeal pursuant to Supreme Court Rule 304 (87 Ill.2d R. 304). Although the written order does not indicate the reasons for denying leave to file a second amended complaint, the record of the hearing reveals the trial court's view that the memorandum opinion was tantamount to a final order. The court apparently denied leave to file the second amended complaint based on the operation of section 2-616(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-616(a)) which indicates that amendments to pleadings are to be allowed prior to final judgment.
We are called upon to decide two matters. First, whether the allegations of the first amended petition were sufficient to support the proposed will contest. If none of the allegations were sufficient, the trial court properly dismissed the amended complaint. The second matter before us is the effect of the trial court's memorandum opinion which called for a written order to follow. If this is viewed as a final order, petitioners were apparently precluded from attempting to amend the petition a second time and the decision of the trial court refusing leave to amend was manifestly correct. We turn now to these two issues, noting that petitioners' notice of appeal does not raise the court's dismissal with leave to amend the petitioners' first complaint, thereby waiving that issue.
• 1 In their briefs to this court, petitioners primarily set out cases delineating the elements required to prove allegations of undue influence and indicate that based on the liberal construction of pleadings generally adhered to in Illinois, the petition adequately set forth the elements of a cause of action to void Billie Bailey's will. Respondents respond that courts> in Illinois require petitioners urging undue influence in will contests to set forth their specific statements of facts in their petitions. The cases of Sterling v. Kramer (1957), 15 Ill. App.2d 230, 145 N.E.2d 757, and Heavner v. Heavner (1930), 342 Ill. 321, 174 N.E. 413, support respondents' positions. The following language of the Sterling case indicates that the complaint in the instant case was inadequate to state cause of action for undue influence in a will contest:
"An analysis of [the Illinois] cases indicates the general rule in Illinois to be that the pleading of undue influence in a will contest must contain a specific recital of the manner in which the free will of the testator was impaired at the time the instrument was executed. A mere conclusion that the testator was influenced by the persuasive or dominant nature of ...