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In Re Estate of Deskins





Appeal from the Circuit Court of Du Page County; the Hon. Edwin L. Douglas, Judge, presiding.


Defendant, James Deskins, appeals from the admission of the will of his son, decedent Dennis C. Deskins, to probate and from the issuance of letters testamentary to plaintiff, Diane Bevis.

Defendant raises the following issues on appeal: (1) whether the trial court erred in admitting the torn will in light of the presumption of revocation; (2) whether, notwithstanding the presumption of revocation, the trial court's decision to admit the will to probate was against the manifest weight of the evidence; (3) whether the trial court erred in admitting the will to probate when the attesting witnesses could not identify the alleged will; (4) whether the trial court erred in disallowing certain testimony as barred by the Dead Man's Act; and (5) whether the trial court erred in disallowing evidence pertaining to decedent's change of beneficiary in certain life insurance policies.

Following the death of decedent, Dennis C. Deskins, on May 4, 1981, decedent's father, defendant James Deskins, filed a petition for letters of administration. Subsequently, plaintiff Diane Bevis (a/k/a Diane Freda), decedent's ex-fiancee, filed a petition for probate of will and for letters testamentary. Both matters were consolidated at the beginning of trial.

At a bench trial, the following evidence was adduced. Testifying for plaintiff, Gary Kraus stated that he was the attorney who drafted the will in issue for decedent in February 1980 and that he kept a photocopy of that document. Kraus also stated that the will was not executed in his presence. Comparing the photocopy with the original, he noticed a difference between them in that the signature lines on the attestation clause of the original will had been cut off. Kraus said he had a telephone conversation with decedent on May 7, 1980, during which decedent told Kraus that a breakup between decedent and plaintiff had occurred and asked Kraus to draft documents whereby decedent would deed his interest in the house to plaintiff in exchange for a release of a promissory note held by plaintiff's father which was for part of the down payment on the house. Kraus reminded decedent that under his will everything would go to plaintiff and suggested that decedent might want to change his will. In September 1980, Kraus had another conversation with decedent during which Kraus asked decedent whether he should draw up a new will, to which decedent replied that he wanted to keep the will that he had. Kraus told decedent if he changed his mind to tear the whole thing up or burn it up, completely destroying it. Kraus said he never told decedent the proper way to revoke the will was to excise the attesting witnesses' signatures from the bottom of the will.

On cross-examination, Kraus testified that in the September 1980 conversation, decedent told him that plaintiff was still a very good friend, that she had taken care of him for several years while he was sick, and that he still wanted the will left as it was. Kraus had also drafted a reciprocal will for plaintiff which left most of her estate to decedent.

Dr. Calvin Kuehner, director of the Basic Science Division of the National College of Chiropractic, testified that he hired decedent as a biologist in the department in 1979. While he could not identify the first page of the will, he recognized the second page because the date of February 19, 1980, was in his handwriting. Kuehner said he saw decedent sign his name to the document and Mrs. Maniglia also witnessed decedent's signature. Kuehner had signed his name below the date. Decedent stated the document was his will and asked Kuehner to witness his signature. Kuehner believed decedent to be of sound mind and memory.

Mary Ann Maniglia, an instructor at the National College of Chiropractic, did not recognize the will shown to her which had the signatures cut off. She did not remember the second page of the will without signatures. She said that sometime around February 1980, decedent asked her to witness his signature, that she did witness it and signed the will, and Dr. Kuehner also witnessed, dated and signed the document. She believed decedent to be of sound mind and memory and said decedent identified the document they signed as his last will and testament.

Diane Bevis, the former Diane Freda, testified that she had been decedent's fiancee and that they had entered into reciprocal wills in February 1980. She replaced her will with a different will in September 1980, by which time the engagement had been broken, and told decedent she was getting a new will. After the engagement was broken on May 3, 1980, she called decedent about five times a week and visited him at his apartment and in the hospital about once a month. Decedent was in the hospital from November 1980 until after Christmas, and plaintiff visited him there. She visited him at his apartment in February 1981 and then, after decedent was hospitalized again in March 1981, she periodically visited him in the hospital. Decedent died in the hospital on May 4, 1981. At decedent's funeral on May 8, 1981, defendant showed her decedent's will and she saw the second page was cut. Prior to May 8, 1981, the last time she saw decedent's will was May 1980, at which time it contained signatures and was complete.

Defendant, testifying as an adverse witness, stated that decedent, his son, passed away at the age of 28 on May 4, 1981, from Hodgkin's disease. Prior to his death, decedent had been in the hospital for one month, during which time defendant would drive down from his home in Troy, Michigan, and visit decedent in the hospital. When visiting, defendant and his wife, when she came along, would stay at decedent's apartment. Defendant would pick up the key at the hospital and return it when he left. To his knowledge, no one other than he and his wife stayed at decedent's apartment during the last month. Defendant stated that a friend of decedent's had access to the apartment to water the plants and bring in the mail. Defendant showed the will to plaintiff at the decedent's funeral.

Dr. Faye O'Brien Usala testified that she taught with decedent beginning in April 1980 and knew him until his death. In November 1980, she had a conversation with decedent regarding his will in which he told her he had a life insurance policy with plaintiff named as the beneficiary. Plaintiff objected to testimony about the change of insurance beneficiary on the basis of relevancy. The trial court permitted the witness to answer, reserving ruling on its relevancy to see if defendant could later tie up intent to change the insurance beneficiary with intent to revoke the will. Usala said decedent told her that plaintiff was named as receiver of decedent's estate under the will and that Dr. Kuehner and Mrs. Maniglia were the witnesses. Decedent told her that he wanted the beneficiary on the will changed because he felt his parents should get any money that was left after he died because they helped him with his financial responsibilities and with their emotional support. She testified that decedent said he wanted to change the will and the insurance so that any money left after his medical bills were paid went to his parents. During that November 1980 conversation, decedent was depressed, lonesome, and hurt because his relationship with plaintiff had ended, and he felt since plaintiff wanted the relationship ended, he should not leave her as beneficiary under his insurance or his will.

In February or March 1981, Usala had another conversation with decedent at his apartment during which decedent said he wanted to change the will so that his parents would get the money after all the medical bills were paid. Usala said she never saw the will until after decedent died, when defendant showed it to her while he and his wife were cleaning decedent's apartment. She noted that the will was in the same condition then as it was on the day of trial in that it was ripped on the bottom part. On cross-examination, Usala admitted that she had had a key to decedent's apartment.

Edmundo Wong, accountant and office manager at the National College of Chiropractic, testified that he handled the insurance at the time decedent was a faculty member at the college, and that decedent executed a change of beneficiary request on a life insurance policy on September 28, 1980, which changed the beneficiary from Diane Freda to the estate of Dennis Deskins. The change-of-beneficiary card itself was not admitted into evidence, based on the trial court's ruling that it was irrelevant in that only decedent's intent as to the will itself was at issue.

Defendant testified that in November 1980, decedent became ill and was hospitalized until January 1981, and defendant was there almost every weekend. There were periods when defendant would stay a week or 10 days at a time. Decedent was hospitalized for one- or-two-day periods off and on and then hospitalized for the last long term beginning on April 4, 1981. Defendant said he first saw the will between January 10, 1981, and February 11, 1981, while staying ...

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