APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
and as Ex'r under prior will, Plaintiff-Appellant, v.
Atwood State Bank, as Trustee, et al., Defendants-Appellees)
512 N.E.2d 1050, 159 Ill. App. 3d 377, 111 Ill. Dec. 509 1987.IL.1196
Appeal from the Circuit Court of Moultrie County; the Hon. Worthy B. Kranz, Judge, presiding.
JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On May 31, 1985, the circuit court of Moultrie County admitted to probate two instruments purportedly executed by Iva B. Jones (decedent), who had died on May 11, 1985. One instrument was a will dated March 29, 1984, giving all of her estate to defendant Atwood State Bank in a trust with her daughter, defendant Jean Mohler, as the lifetime income beneficiary. That instrument included directions that, upon Mohler's death, the property was to be distributed to Mohler's two daughters, plaintiff, Joy Frazier, and defendant Janna Collins, in equal shares. Mohler was appointed executor. Gifts over in the event of the death of either of the persons designated to take the remainder were also made. The other instrument was a codicil dated April 12, 1984, revoking the gift to Frazier.
On December 2, 1985, plaintiff Frazier filed a complaint in the same cause seeking to set aside the will and codicil on the grounds that decedent lacked testamentary capacity and that she had been subject to undue influence by Mohler and Collins. In addition to the latter defendants, Atwood State Bank as trustee, Mohler in her capacity as executor, and the Millikin Bank, as guardian for the decedent's incompetent husband, William J. Jones, were named as defendants. Mohler, as executor, filed a counterclaim against plaintiff alleging that plaintiff had breached fiduciary duties she owed to the decedent. After an amended complaint was filed and issues drawn, a bench trial was held. At the close of plaintiff's case, the circuit court entered a judgment on October 21, 1986, in favor of defendants as to the count of the complaint alleging that the decedent lacked testamentary capacity. After all the evidence was presented, the court entered a judgment on November 12, 1986, in favor of defendants on the count based on undue influence and entered judgment on the counterclaim in favor of Mohler as executor and against plaintiff, awarding compensatory damages in the sum of $90,000 and punitive damages in the sum of $10,000.
Plaintiff has appealed maintaining: (1) the evidence did not support the judgments entered on the amended complaint; (2) the court erred in ruling that she was incompetent to testify on the issues of the decedent's testamentary capacity and the undue influence alleged to have occurred; (3) the court erred in admitting into evidence a tape recording of an interview with the decedent; and (4) the evidence did not support the amount of damages awarded on the counterclaim. We affirm the judgments entered on the complaint, affirm the judgment on the counterclaim subject to a remittitur and remand, all as we subsequently explain.
In passing upon the propriety of the judgment entered at the close of the plaintiff's case, we can consider only the evidence presented up to that time. Much of it concerns various wills and codicils executed by the decedent in the last decade of her life. The record indicated that she was approximately 82 years old at the time of her death.
Testimony was presented that on December 10, 1975, the decedent executed a will prepared by attorney Raymond Lee of Tuscola. Then, on March 10, 1980, she executed a will prepared by the law firm of Craig & Craig of Mattoon. Later, on March 24, 1981, she executed a will, again prepared by Raymond Lee. Following that, she executed a codicil to that will on October 14, 1983, which was drafted by William Noonan, then practicing in the Decatur area. Finally, she executed the will and codicil which are the subject matter of this case. They were prepared by attorney Wayne Bickes of Decatur. A common theme of the prior wills was to provide for a trust for decedent's farmland, to give a beneficial interest therein to her husband for life, then to Mohler for life and then to have the remainder distributed to Collins and plaintiff in equal shares. Decedent's husband, Mohler or plaintiff all were named as executor in at least one will.
Under the terms of the will of March 24, 1981, and the codicil of October 14, 1983, (1) plaintiff was the named trustee of the farmland and executor of the will; (2) Mohler, Collins, and plaintiff were to receive annual income from the trust upon the death of decedent's husband until 20 years after the death of decedent; and (3) at that time, the assets of the trust were to be distributed to those three persons or their survivors in equal shares. Thus, if that will and codicil were found to be the last will and testament of decedent, plaintiff would obtain a contingent one-third interest in the remainder, a trusteeship and an executorship which she does not have under the documents admitted to probate.
Raymond Lee testified that he had become concerned about the decedent's mention to him of animosity between plaintiff and her mother, Mohler, and accordingly he took great care to study the decedent's testamentary capacity in 1981. He indicated he was convinced that she had that capacity at that time. However, he also stated that in the spring of 1983, he was approached by the decedent and plaintiff and was asked to defend the decedent in a proceeding brought by Mohler to have decedent declared to be a disabled adult because of mental incapacity. (Ill. Rev. Stat. 1981, ch. 110 1/2, par. 11a-3.) Lee testified that, by that time, decedent had "no free will left" and ...