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12/31/87 Therese Felson Et Al., v. Lidia Scarpelli Et Al.

December 31, 1987

THERESE FELSON ET AL., PLAINTIFFS-APPELLANTS

v.

LIDIA SCARPELLI ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

520 N.E.2d 801, 165 Ill. App. 3d 869, 117 Ill. Dec. 450 1987.IL.1976

Appeal from the Circuit Court of Cook County; the Hon. Albert Green, Judge, presiding.

APPELLATE Judges:

JUSTICE JIGANTI delivered the opinion of the court. LINN, J., concurs. PRESIDING JUSTICE McMORROW, Dissenting in part and specially Concurring in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

The plaintiffs are the children of Anthony Scarpelli, the decedent. They allege that they acquired certain rights as a result of an oral agreement between Anthony Scarpelli and his wife, Lidia Scarpelli, one of the defendants, to make irrevocable, mutual and reciprocal wills. Although Lidia Scarpelli did not revoke her will, the plaintiffs allege that their rights were defeated when Lidia disposed of the property which they were to receive under the will. As a separate count, the plaintiffs further contend that Lidia Scarpelli, alone or in conspiracy with the other defendants, tortiously and intentionally interfered with their expectancy. The trial court dismissed the complaint and this appeal follows.

The complaint alleges that Anthony and Lidia were married in 1961. Both had children from previous marriages but no children were born to them during their marriage. Anthony died in 1984 leaving a substantial estate which was the result of his investments made before and during his marriage to Lidia. Lidia's financial contribution to the marriage was minimal.

The complaint further alleges that Anthony and Lidia agreed that the assets of their marriage would be treated as a common pool for their benefit and their children's benefit. They agreed that when one of them died the other should use the assets of the common pool to continue living the type of lifestyle to which they were accustomed and that the rest of the common pool of assets would ultimately go to the children when the surviving spouse died. Anthony and Lidia both agreed that they would do nothing to defeat or frustrate this agreement. In furtherance of their agreement, Anthony and Lidia executed mutual and reciprocal wills on the same day and before the same witnesses. Their wills are substantially identical in terms: each leaves virtually all of the testator's property to the survivor, and the remainder to the three children of Anthony and the daughter of Lidia to be divided equally. Immediately following Anthony's death, Lidia allegedly violated the oral agreement by transferring substantially all of the assets of the common pool to some or all of the defendants either in joint tenancy or as gifts. The defendants include Lidia's daughter, Lidia's son-in-law, and Lidia's grandson and his wife.

Mutual and reciprocal wills are the separate instruments of two or more persons, the terms of such wills being reciprocal, by which each testator makes a testamentary Disposition in favor of the other. (Frese v. Meyer (1945), 392 Ill. 59, 63, 63 N.E.2d 768, 770.) Mutual and reciprocal wills may or may not be revocable at the pleasure of either party, depending on the circumstances and understanding upon which they were executed. (Martin v. Helms (1925), 319 Ill. 281, 284, 149 N.E. 770, 772.) If the circumstances establish that the mutual and reciprocal wills were executed pursuant to a contract, then the wills become irrevocable upon the death of one of the testators. (Martin v. Helms (1925), 319 Ill. 281, 285, 149 N.E. 770, 772.) The revocation of an irrevocable, mutual and reciprocal will gives those entitled to take under the will a cause of action against the survivor. See Monninger v. Koob (1950), 405 Ill. 417, 91 N.E.2d 411; Proctor v. Handke (1983), 116 Ill. App. 3d 742, 452 N.E.2d 742.

The mere existence of mutual and reciprocal wills does not lead to a presumption of a contract. (Proctor v. Handke (1983), 116 Ill. App. 3d 742, 746-47, 452 N.E.2d 742, 746.) Clear and convincing evidence is required to establish that irrevocable, mutual and reciprocal wills were executed as a result of a binding contract. (Frese v. Meyer (1945), 392, Ill. 59, 64, 63 N.E.2d 768, 770.) To determine whether such clear and convincing evidence exists, it is necessary to look at the wills themselves, as well as evidence outside the wills. Monninger v. Koob (1950), 405 Ill. 417, 422, 91 N.E.2d 411, 414.

The defendants argue that because the factual situations are similar we should reach the same Conclusion as the court did in Monninger v. Koob (1950), 405 Ill. 417, 91 N.E.2d 411, which held that the evidence was not of a clear and convincing nature to establish an agreement between a husband and wife to make irrevocable, mutual and reciprocal wills.

In Monninger, testimony was presented to the master in chancery regarding the circumstances surrounding the execution of mutual and reciprocal wills. In concluding that the evidence did not establish an agreement to make irrevocable, mutual and reciprocal wills, the Illinois Supreme Court considered several facts significant. First, there was no language in the wills from which a contract could be inferred, nor did the wills refer to each other. Second, the only testimony given was by interested persons about what people who were deceased at the time of the hearing said. Third, the husband and wife refused to enter into a written agreement. Fourth, the evidence showed that both husband and wife knew they could make new wills at any time.

We believe that the facts in Monninger can be distinguished from the instant case. Initially, it should be noted that the wills here are in fact mutual and reciprocal. Although the existence of a binding contract between Lidia and Anthony is not specifically expressed in the wills, nor do either of the wills contain any reference to each other, the complaint pleads facts outside the wills which may be considered in determining whether there is a contract to make the wills irrevocable.

The complaint states that Anthony and Lidia agreed to treat all assets of the marriage as a common pool. They agreed that the survivor of them would live the lifestyle to which they were accustomed and that the remainder of the common pool would go to the children in equal shares. They agreed that they would do nothing to defeat the ultimate distribution of the remaining pool of ...


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