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08/24/87 In Re Estate of Mary T. Dossett

August 24, 1987



Deceased (Phoebe Graff, Petitioner-Appellant, v.

James Bennet, Indiv. and as Ex'r of the Estate of Decedent,

et al., Respondents-Appellees)

512 N.E.2d 807, 159 Ill. App. 3d 466, 111 Ill. Dec. 418 1987.IL.1234

Appeal from the Circuit Court of Tazewell County; the Hon. William J. Reardon, Judge, presiding.


PRESIDING JUSTICE BARRY delivered the opinion of the court. STOUDER and HEIPLE, JJ., concur.


Petitioner Phoebe Graff appeals from judgment of the circuit court of Tazewell County granting respondents' motion for a directed verdict at the close of petitioner's case in chief and dismissing her complaint. For reasons that follow, we reverse.

Mary T. (Mayme) Dossett, a widow, died on September 27, 1982, at age 84. A will dated March 1, 1982, was admitted to probate on October 29. Petitioner is the sister of the testatrix and her only heir at law. In the March 1982 will, petitioner was expressly disinherited "not through any lack of affection, but rather [because testatrix did] not wish her to share in [testatrix'] estate." The will bequeathed $1,000 to respondent William Bennet and the remainder of the estate to respondent James Bennet, who was also nominated executor.

On March 8, 1983, petitioner filed a complaint to set aside the will on grounds of undue influence and lack of testamentary capacity. The matter proceeded to a jury trial on July 15-16, 1986. Petitioner's evidence established that testatrix resided at the Hopedale Nursing Home from 1979 until her death. She was paralyzed below the waist, and her health during that time was generally poor and deteriorating. Respondents knew testatrix, a retired school teacher, from their childhood. Together, they had farmed testatrix' land since around 1961. In 1980 testatrix gave respondents a power of attorney allowing them to transact business for her. The document was prepared by respondents' attorney, who also witnessed its execution by testatrix.

In April 1981, another sister, Ruth Davis, died intestate. Petitioner's grandson, Dennis Graff, was selected as the attorney for the Davis estate. Because of the deteriorating health of both Phoebe and Mayme, Dennis suggested that the two surviving sisters jointly disclaim their interests in the Davis estate, thereby avoiding certain inheritance and estate taxes. The sisters agreed to the joint disclaimer, and on August 30, 1981, they executed a joint disclaimer document which was prepared and witnessed by Dennis Graff. After the document was filed, Dennis returned to visit testatrix, and he encountered respondent James Bennet. According to Dennis, James inquired about the joint disclaimer. James stated that that he had testatrix' power of attorney and he was upset about the fact that she had signed the document outside his presence. Dennis testified that James then said that he intended to talk with testatrix about revoking the disclaimer because he (James) did not think she should be giving her property away during her lifetime.

It appears that subsequent to this conversation, testatrix executed a will drafted by Dennis Graff in which she nominated her nephew, Harold Graff, as executor and bequeathed her entire estate to petitioner Phoebe Graff. This will was signed and witnessed on October 10, 1981. According to Dennis, testatrix expressed her satisfaction with the will as drafted because it kept the family farm in the family. Dennis further testified that testatrix had complained to him that Jim Bennet was pressuring her to sign another will and that she had no intention of doing so. Finally, Dennis testified that both respondents had acted nervous around him when he (Dennis) encountered them during a visit with testatrix around April of 1982.

The evidence further established that the will executed on March 1, 1982, was prepared by respondents' attorney at no charge to testatrix. At trial, both respondents denied having any knowledge of that will until after testatrix' death. However, a "renunciation" document was procured by James Bennet through his attorney purporting to revoke testatrix' disclaimer of interest in the Davis estate. It does ...

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