Appeal from the Circuit Court of Lake County; the Hon. Bernard
E. Drew, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Petitioner, Thomas Watson, appeals from a judgment which dismissed his petition to set aside the will of Jeanette T. Watson, deceased, on the grounds petitioner lacked standing to contest the will and that the petition failed to state a cause of action. He also appeals from the order of the trial court which denied all discovery to petitioner until the petition stated a cause of action.
Jeanette T. Watson died May 31, 1982, leaving an instrument dated July 30, 1980, which purported to be her last will and testament. It was admitted to probate on petition of respondent, William Walsh, who was appointed as executor of the estate. The approximate value of the estate was $66,500 and the will named as residuary legatees: St. Ann's Home for the Aged, one half; John M. Walsh, one quarter; and William Walsh, one quarter.
The first petition to set aside the will was filed January 10, 1983, and alleged decedent lacked testamentary capacity and that the will was executed as a result of undue influence. The petition also alleged that decedent had executed a prior will in 1966, wherein petitioner was bequeathed 50% of the residuary of the estate, and that it was decedent's true and valid will.
Petitioner also served written interrogatories upon respondents William Walsh and St. Ann's Home, together with a notice for depositions and demand for documents. Respondents did not comply with these requests and on March 7 and March 22, respectively, filed motions to strike the petition on grounds it failed to state a cause of action and was not verified. Petitioner thereupon moved to be permitted to complete discovery prior to the hearing of the motions to strike the petition. This motion was denied and, after a hearing held April 15, the first petition was dismissed on the grounds petitioner lacked standing and was not verified. The court noted it was not ruling upon the sufficiency of the petition and that matter could be raised again.
A verified amended petition filed June 1 alleged, inter alia, that petitioner had been advised by decedent in 1979 that he was permanently named in her will to receive a part of her estate; that petitioner believed the prior will was in existence at the time of the alleged execution of the will dated July 30, 1980, and may be in the possession of the attorneys for the executor; that one of those attorneys had acknowledged that petitioner was a 50% residuary legatee in a prior will of decedent; that petitioner was unable to secure a copy of that will to attach to the petition as respondents have failed to reply to his requests and the trial court had ordered they need not comply with discovery. Affidavits in support of these allegations of fact were attached to the petition.
As to the document dated July 30, 1980, the amended petition alleged it was not decedent's will for these reasons:
"(a) That at the time of the alleged or supposed execution of said instrument, Jeanette T. Watson was of unsound mind and memory and did not have the physical or mental capacity to execute a will as she was suffering from, and for a long time prior thereto had suffered from a cerebral deficit and other cardiovascular difficulties.
(b) That at the time of the execution of said instrument, Jeanette T. Watson did not have the mental capacity, power or ability to know or understand what property she had to dispose of, or know who were the natural objects of her bounty.
(c) That at the time of the execution of said instrument, Jeanette T. Watson was under the influence, domination and control of certain unidentified agents and employees of respondent, St. Ann's Home for the Aged, which deprived the decedent of her free agency and the freedom of her will and it was not her free and voluntary act."
The petition further alleged that when allowed by the court to conduct discovery, an amended petition would be presented.
Respondents sought dismissal of the amended petition alleging, inter alia, it failed to state a cause of action, that a copy of the prior will was not attached, and that petitioner lacked standing to contest the will. Petitioner again sought leave of court to pursue discovery before it ruled upon respondents' motions to strike, and his request was denied. A notice to the executor's attorneys to be examined concerning any prior will of decedent was quashed as was also a subpoena duces tecum which had been served upon one of the attorneys for the executor to require him to produce all records relating to any prior wills of decedent. Petitioner appeals.
• 1 Section 8-1(a) of the Probate Act (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 8-1(a)) provides that any interested person may file a petition to contest the validity of a will. It has been held that legatees of a prior will of a decedent, even though not heirs at law, are "interested" persons within the meaning of the Act. (Kelley v. First State Bank (1980), 81 Ill. App.3d 402, 413, 401 N.E.2d 247; In re Estate of King (1968), 91 Ill. App.2d 342, 235 N.E.2d 276.) Although in the present case the alleged prior will could not be produced, section 2-606 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-606) provides that where a claim is founded upon a written instrument which is not available, the pleader may attach to the pleading an affidavit ...