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06/23/95 MATTER ESTATE LEANORE TAUB CROCE v. MERLE

June 23, 1995

IN THE MATTER OF THE ESTATE OF LEANORE TAUB CROCE, DECEASED, DONATO CROCE, PETITIONER-APPELLANT,
v.
MERLE DAVIS, AS EXECUTOR AND TRUSTEE UNDER THE LAST WILL AND TESTAMENT OF LEANORE TAUB CROCE, DECEASED, AND MICHAEL CROCE, A MINOR, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Arthur C. Perivolidis, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: McNAMARA, P.j. and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

JUSTICE EGAN delivered the opinion of the court:

The principal issue in this case is whether a surviving spouse may maintain a will contest after having filed a renunciation of the will. No Illinois case has addressed this precise issue; but cases in other jurisdictions have.

Donato Croce, the surviving spouse, appeals from an order dismissing his complaint to contest the will of his wife, the decedent, Leanore Taub Croce. The trial judge held that a renunciation of the will filed by the petitioner barred him from maintaining the will contest. The petitioner also appeals from a subsequent order denying him leave to withdraw his renunciation.

The decedent died on May 25, 1993; surviving her were the petitioner and a son, Michael Croce. A petition for probate of a will was filed on June 23, 1993. In the will, the decedent gave her residence in trust to her son; a custodial brokerage account in trust to her son; a savings account in trust to her son; and any interest the decedent had in her late mother's estate to her son. The decedent gave to the petitioner 50 percent of her one-half interest in property at 1120 Jackson Boulevard in Chicago. (Her brother owned the other one-half interest.) She expressed the intention that her son be given 25 percent interest in that property.

On December 6, 1993, the petitioner filed a petition to contest the will alleging that the decedent lacked testamentary capacity when she executed the will. On January 10, 1994, the petitioner filed a renunciation of the will. On January 27, the executor filed a motion to strike the will contest complaint on the ground that the allegations were legally insufficient. The record does not contain a pleading in which the executor alleged that the will contest complaint must be dismissed because of the renunciation; but apparently the executor did file such a pleading because the petitioner filed a response on February 14, in which he maintains that "no Illinois cases prohibit a spouse who exercises his right to renounce a will from also challenging the validity of that will." On February 28, the judge struck the will contest complaint and gave the petitioner 21 days to file an amended complaint.

On April 22, the petitioner was given leave to file a first amended complaint to contest the will; and the executor was given 14 days to file a response. The record contains an agreed order entered on May 2, giving the petitioner 14 days to file a response to the executor's motion to strike and dismiss the will contest; but it does not contain the executor's motion to strike and dismiss.

On May 19, the petitioner filed a response to the motion to strike and dismiss the first amended complaint to contest the will and a "revocation of spouse's renunciation of will." In his response to the motion to strike and dismiss, the petitioner stated that "his renunciation does not constitute an election to take, under the Will, but, in fact, reenforces and reaffirms his refusal to recognize the terms and provisions of the Will." In his response he asked that, if the judge determined that his renunciation of the will constituted an election which barred him from continuing his will contest, he requested that the court permit him to withdraw the renunciation "on the basis that: A. the renunciation was filed after the date of the filing of the will contest action which was filed on December 6, 1993; and B. the executor has previously approved and suggested such withdrawal."

In the "revocation of renunciation" filed the same day, the petitioner alleged as follows:

"The Court has determined on the Motion of the executor that the Renunciation constitutes an election by the spouse as to the manner in which he will take from the estate of wife and is therefore a bar to the Petition to Contest the decedent's will.

At the time of the filing of the Renunciation the undersigned believed and understood that such action constituted a further indication of his refusal to recognize the will of the decedent as a valid expression of her intentions. Accordingly, his Renunciation was intended not as an election but as a further rejection of the decedent's will and codicils."

On May 20, the trial judge dismissed the will contest with prejudice. On June 17, the petitioner filed a motion to reconsider. On June 23, the judge denied the motion to reconsider and denied the petitioner's motion for leave to withdraw the renunciation of the will.

This case hinges on the interpretation of Section 2-8 of the Probate Act of 1975 (755 ILCS 5/2-8 (West 1992)) ...


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