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10/19/87 In Re Estate of William Jeziorski

October 19, 1987

IN RE ESTATE OF WILLIAM JEZIORSKI, DECEASED (THEODORE


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

Jeziorski et al., Plaintiffs-Appellants, v.

Fred Tomera, Jr., Indiv. and as Executor of the Estate of

William Jeziorski, Deceased, et al.,

Defendants-Appellees)

516 N.E.2d 422, 162 Ill. App. 3d 1057, 114 Ill. Dec. 267 1987.IL.1554

Appeal from the Circuit Court of Cook County; the Hon. Henry A. Budzinski and the Hon. Willard J. Lassers, Judges, presiding.

APPELLATE Judges:

JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL

The plaintiffs, four of the six children of William Jeziorski, deceased, filed a will contest in the probate division of the circuit court of Cook County which included two counts for tortious interference with an expected inheritance and abuse of a confidential relationship. The defendants were the remaining two children of the deceased and the executor of the will. The probate court dismissed the tort action, ruling that actions in tort cannot be pled in conjunction with a will contest. Plaintiffs subsequently filed their tort action for interference with an expectancy and abuse of a confidential relationship in the law division. The law division Judge dismissed their action on the basis that the probate court order was res judicata. Plaintiffs appeal from both dismissal orders.

Plaintiffs argue in this consolidated appeal that their action was improperly dismissed since tort actions for interference with an expectancy and abuse of a confidential relationship can be pled in conjunction with a will contest.

The record reveals the following chronology of facts. William Jeziorski died on June 5, 1984. On November 16, 1984, after a hearing at which the court heard the testimony of the witnesses to the will, the decedent's will, dated March 13, 1983, was admitted to probate. Under the terms of the will, the plaintiffs, the deceased's four sons, were each to receive a bequest of $1,000. The decedent's daughter, defendant Michelle Tomera, also was to receive a bequest for $1,000, with the residue of the estate to pass to the decedent's youngest daughter, defendant Joanne King. Defendant Fred Tomera, Jr., the decedent's grandson and the son of Michelle Tomera, was the named executor under the will. Fred Tomera was not a beneficiary under the will.

On April 11, 1985, plaintiffs filed an action against defendants in the probate division to contest the validity of the decedent's will and for tortious interference with an expectancy. Plaintiffs' complaint sought to contest the validity of the will on the alleged basis that the signature of the decedent was a forgery and that the decedent was of unsound mind and memory at the time he executed the will. Plaintiffs' action in tort further alleged that defendants had maliciously interfered with plaintiffs' expected inheritance and that defendants had abused a confidential relationship with the decedent. Defendants moved to strike that portion of the complaint seeking relief in tort, arguing that where a will has been admitted to probate, the plaintiffs are limited to bringing their claims under the provisions of the Probate Act applicable to will contests. (Ill. Rev. Stat. 1985, ch. 110 1/2, par. 8-1.) On December 5, 1985, the trial court granted defendants' motion to strike, holding that heirs or legatees may not maintain an action for malicious interference with an expectancy where a will has been admitted to probate. Since the plaintiffs would have an adequate remedy should they prevail in the will contest, the trial court held they were precluded from bringing a cause of action in tort, stating that "a complaint for malicious interference properly belongs in the law division."

Thereafter, on January 22, 1986, plaintiffs filed their tort action for malicious interference with an expectancy in the law division of the circuit court of Cook County. At the same time, plaintiffs filed a petition in the probate division to vacate the earlier order striking the malicious interference count from their complaint and seeking to transfer the action to the law division. The probate court denied the motion. Defendants filed a motion to strike the law division complaint, and the court granted this motion based on the res judicata effect of the ...


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