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01/26/94 DONETTE WISZOWATY AND CELINE STACHURA v.

January 26, 1994

DONETTE WISZOWATY AND CELINE STACHURA, PLAINTIFFS-APPELLANTS,
v.
JERROLD BAUMGARD, NELLI RAHOW, ALLA SWIEK, JARISLAW MYTKO AND JANE FLASZKA MYTKO, INDIVIDUALLY, AND JERROLD BAUMGARD AS EXECUTOR OF THE INSTRUMENT PURPORTED THE LAST WILL AND TESTAMENT OF HELENE JENSEN, DECEASED, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Frank M. Siracusa, Judge Presiding.

Released for Publication March 18, 1994.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Plaintiffs Donette Wiszowaty and Celine Stachura appeal the trial court's order granting summary judgment to defendant Jerrold Baumgard, the executor and principal beneficiary, in an action to set aside a will.

On appeal plaintiffs assert that summary judgment was improper because the evidence raised triable questions of fact regarding the decedent's testamentary capacity at the time she signed the will and undue influence exerted upon the decedent by defendant Baumgard. Plaintiffs also contend that defendant Baumgard's affidavit submitted in support of his motion for summary judgment should have been stricken on the grounds that it violated Supreme Court Rule 191 (134 Ill. 2d R. 191).

For all the reasons which follow, we affirm the entry of summary judgment in favor of defendant Baumgard.

On April 3, 1987, 77-year-old Helene Jensen executed a will which was filed for probate following her death at age 79 on January 9, 1989. The 1987 will made three specific monetary bequests to four named defendants, i.e., Nelli Rahow ($2,000), Alla Swiek ($1,500), and Jarislaw and Jane Mytko ($1,000). The will designated defendant Baumgard (hereinafter defendant) as the executor and beneficiary of the remainder of the estate. Plaintiffs, the two daughters and sole surviving heirs of decedent, were not included in the will.

On July 27, 1989, plaintiffs filed a petition to set aside the 1987 will based on the allegations that at the time the will was executed, decedent lacked the testamentary capacity to make a will and was subject to the undue influence of defendant.

In his response to plaintiffs' interrogatories filed on June 29, 1990, defendant stated that he and other neighbors, including Nelli Rahow, occasionally performed various errands for decedent at her request during the years 1986, 1987 and 1988. Defendant recalled walking decedent's dog, making minor repairs to her house and helping her shop for household items. Defendant declared that he was not associated with decedent in any business or other enterprise and did not have anything to do with the drafting of her will.

On July 30, 1990, defendant was deposed. In his deposition, defendant testified that he first met decedent as a neighbor in September 1986. During their conversations, decedent told defendant about her daughters and her desire to preclude her daughters from any possible inheritance. Decedent asked what would happen to her property if she did not have a will and defendant answered that under State law her heirs would get her estate. In response to decedent's question as to how to avoid her estate from going to her daughters, defendant told her to write a will. Decedent asked defendant if he knew an attorney who she could trust and who would make a house call. Defendant provided the name and telephone number of an attorney to decedent.

Defendant further testified about the events of April 3, 1987, when the contested will was executed at decedent's house. Decedent telephoned defendant at work in the late morning and informed him that she wanted to go the doctor. When defendant arrived at decedent's house, decedent informed him that she had called an attorney, wanted to make her will and then would proceed to the doctor. Mr. and Mrs. Mytko were apparently contacted by decedent to came to her house to witness her will. At decedent's request, defendant called a third person, Judy Breiner, to be a witness to decedent's will. When the attorney arrived, he spoke to decedent alone while the other assembled persons waited in another room. Defendant called the paramedics who arrived when the witnesses were signing some papers, presumably the will, and who then transported decedent to the hospital. Defendant arrived at the hospital after decedent was already in the emergency room and provided insurance information to the hospital receptionist. Defendant saw the paramedics at the hospital but did not talk to them. Decedent was admitted to the hospital on April 3 and remained there about 7 to 10 days.

Prior to the preparation of decedent's will, defendant was aware that decedent intended to leave the bulk of her estate to defendant and believed that the only property she had was the house. Defendant and his mother moved into decedent's building from their neighboring residence about July 1988.

On March 22, 1991, defendant filed a motion for summary judgment denying the allegations in plaintiffs' petition and attaching his affidavit. In his affidavit, defendant attested that he met decedent in September 1986 and had many conversations with her during the years 1986 to 1989. According to defendant, decedent knew that she had two daughters, owned the house and other personal property, and was the landlord. Decedent accepted money from various tenants, paid her bills, conducted her own banking, took care of her daily needs and was generally self-sufficient. Defendant further stated in his affidavit that decedent "did not have to be hospitalized or placed in a nursing home, was capable of walking around her house as much as she wanted, and in all other respects was physically capable, given her age and illnesses."

Regarding the events of April 3, 1987, defendant attested that he was with decedent for six hours before she signed the will and observed her sign the will of her own free will. Decedent was adamant about executing her will, read the will before signing it, and asked the attorney questions concerning the will both before and after execution. Defendant further stated that decedent "was by no means incompetent or otherwise unable to sign her last will and testament."

Defendant further attested that for the next two years, decedent referred to the 1987 will on many occasions, remembered the terms of the will and expressed her wish that neither of her two children inherit from her estate. Defendant also stated that on the day of her death, decedent told defendant "that she knew she had a ...


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