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January 25, 1996


Appeal from Circuit Court of Clark County. No. 91P80. Honorable Tracy W. Resch, Judge Presiding.

Petition for Rehearing Denied March 1, 1996. Released for Publication March 1, 1996.

Honorable Rita B. Garman, J., Honorable Robert W. Cook, P.j., Honorable Frederick S. Green, J., Concurring, Justice Garman delivered the opinion of the court:

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Plaintiffs Wanda Zachary and Sheila Orr appeal an adverse jury verdict in the circuit court of Clark County in their action contesting the validity of the last will of their great-aunt, Blanche Hillard (decedent). Plaintiffs are decedent's sole heirs. They are the daughters of defendant Ruby Orr and decedent's deceased nephew, Keith Orr. Defendant Forrest Mills is decedent's first cousin, and defendants Ruth Arbogast and William Mills are Forrest's children, i.e., decedent's first cousins once removed. Defendant Daniel Arbogast is married to Ruth. Defendants cross-appeal the denial of their motion for sanctions.

Decedent died November 19, 1991, a resident of Casey, Clark County, Illinois. She left a last will dated September 17, 1986. By that will, she gave all her real estate (consisting of two tracts of land and her home) and the contents of her home to Forrest and his wife, Velma Mills. The remainder of the estate was given in equal shares to Forrest and Velma and to Ruth Arbogast, William Mills, Daniel Arbogast, and Ruby Orr. Forrest was nominated to serve as executor. This will was admitted to probate on December 12, 1991. At the time of her death, decedent was living in a nursing home. In 1991, Forrest was appointed guardian of her person. In 1979, decedent executed a power of attorney appointing Forrest her attorney in fact.

In May 1992, plaintiffs filed a three-count complaint. Velma was ultimately dismissed from the case. Count I as to Forrest alleged that (1) at the time of the making of the will, decedent was under the influence, domination, and control of Forrest, which destroyed her freedom of will; (2) prior to and on September 17, 1986, Forrest had a fiduciary and confidential relationship with decedent and he handled her business and financial affairs, purported to take care of her home, run her errands, and sign checks on her checking account; and (3) Forrest abused that fiduciary relationship and procured execution of the 1986 will, thereby securing for himself and his wife all of decedent's real estate and most of her personal property, as well as having their children, William Mills and Ruth Arbogast, receive a portion of the remainder of the estate. Count II, as to all defendants, alleged that (1) the law firm of Arbogast & Arbogast (consisting of Daniel and his late father, Zollie) prepared the 1986 will; (2) decedent left Daniel a portion of the residue of her estate and made him successor coexecutor, along with Zollie; (3) at the time of the making of the will, decedent was under the influence, domination, and control of Daniel and Zollie, which destroyed her freedom of will; (4) Daniel and Zollie had a fiduciary and confidential relationship with decedent, in that they handled decedent's business and financial affairs, advised her on legal matters and drafted her 1986 will; and (5) during that relationship, Daniel and Zollie abused it by procuring the execution of the 1986 will and secured a substantial benefit for themselves, and for Ruth, Forrest, and Velma. Count III, as to all defendants, alleged that decedent was not of sound mind and memory at the time she executed her 1986 will by reason of age, senility, and other medical conditions.

Prior to trial on the merits, a number of orders were entered by the trial court. Among those relevant to this appeal were orders (1) barring any testimony of plaintiffs and Ruby Orr which would violate the Dead-Man's Act (Act) (735 ILCS 5/8-201 (West 1992)), (2) refusing to allow plaintiffs to amend count II of the- complaint to allege violation by Daniel and Zollie of Disciplinary Rules 5-101(a) and 5-103(a) of the Illinois Code of Professional Responsibility (Code) (107 Ill. 2d Rules 5-101(a), 5-103(a)), (3) barring admission into evidence or any reference to seven prior wills executed by decedent between 1966 and 1979, and (4) barring plaintiffs from presenting evidence of any alleged ethical violations by Zollie in preparing a will which benefited a member of his family.

Much of the evidence at trial concerned decedent's mental competence. Since plaintiffs have not appealed the decision of the jury on this issue, we will recount that evidence only as necessary to an understanding of this opinion.

Plaintiffs grew up in the Casey, Illinois, area. Wanda moved away in 1972, and Sheila moved to Tennessee with her mother in 1975. Thereafter, both plaintiffs visited relatives in Casey four or five times per year during the 1970's and early 1980's. They saw decedent during these visits. Plaintiffs testified they were both aware that Forrest was appointed guardian for decedent in 1991, and they had no objection to his appointment because he lived close to decedent and was the best person to care for her.

At the November 1994 trial, witnesses testified that Forrest or Velma usually took decedent to the doctor when needed during the 1980's. Decedent's physician testified that she had some episodes of mental confusion and had arteriosclerosis. He saw decedent several times between 1983 and February 1987, but did not see her or receive any calls from her complaining of any ailments between January 1986 and September 1986. By 1988, decedent was in need of household help. Forrest hired Marcella Finney to be a companion to decedent. She assisted decedent by getting her up in the morning, preparing her meals, helping her bathe, and making sure she took her medication. Finney testified that decedent was sometimes forgetful, but did not seem to be confused. When she saw Forrest and Velma with decedent, they seemed loving and caring toward her.

Other witnesses who had known decedent testified that in their opinion, she was mentally competent in 1986. Two expert witnesses testified as to the possibility of decedent having Alzheimer's disease. Mary Jane Biggs, who also helped care for decedent in 1988, testified that while she was there Forrest came to decedent's house every day or, if he could not come, he would call; he and Velma brought groceries and medicine to decedent. Daniel and Ruth Arbogast were there at times, and they would take over in helping decedent if Forrest and Velma were not available. Another of decedent's friends testified that decedent told her she did not know what she would do without Forrest and Velma.

Kay Cramer testified that she visited with decedent in 1988 or after and she was able to discuss farming matters, such as what was being planted and what yields were in prior years. Kay's husband, Eugene Cramer, was decedent's farm tenant. He testified that he normally met with decedent two or three times a year regarding farming business. He met with her in 1986, and she did not seem confused. In 1979, he expressed an interest in buying decedent's farm, but she told him plaintiffs were to receive it upon her death and she was not interested in selling. In the fall of 1990, he asked Forrest about the possibility of purchasing the farm. Forrest indicated that "we are supposed to get it" and it was not for sale. He did not say who he meant by "we."

Defendant Ruby Orr testified she moved to Martinsville, Illinois, in 1953. She and her family went to Casey frequently during the 1960's and 1970's. Even after moving to Robinson, Illinois, she and Sheila still made trips to Casey. After moving to Memphis, Tennessee, she returned to Casey three or four times a year.

In light of the trial court's order barring certain testimony by Ruby, plaintiffs made an offer of proof in which Ruby testified that when she traveled to Casey in the mid-1980's she always visited decedent. Decedent's mental condition was bad in 1984 and 1985. At times, she did not appear to recognize Ruby and her daughters and would forget where they lived. Decedent could not remember Ruby's late husband, yet decedent had practically raised him. She thought Sheila's son (born in 1985) was Ruby's child, and they could not make her understand that he was Ruby's grandson. In the summer of 1986, she visited decedent and, at that time, decedent asked Ruby why she took her (decedent's) dishes to Memphis. When she asked decedent to show her what dishes were missing, all her dishes were in the cabinet. Despite this, decedent continued to insist that some of her dishes were missing. In her opinion, decedent would not have been mentally competent to make a will at that time. There had been a big change for the worse in decedent's state of mind since Ruby left the area in 1975. Each time she returned to Casey to visit, decedent's mind had deteriorated a bit more. In the spring of 1986, decedent complained to her that there were people outside her bedroom window planning her death. About 1976, she had a conversation with decedent in which decedent said she intended to leave her house and land to Wanda and Sheila. She also expressed to Ruby that if she had a niece or daughter-in-law, she would have chosen Ruby. Prior to 1980, decedent was a good housekeeper. After that, Ruby noticed that her house was not kept as clean. It was her understanding that Forrest and Velma were being paid to help decedent. The trial court refused the offer of proof.

Elizabeth King, former secretary for the Arbogast law firm from 1985 to 1989, testified that the attorneys at the firm during that time period were Zollie and Daniel. She identified a copy of a page from the firm's appointment book for September 17, 1986, which reflected the names of people who called and came into the office. Forrest was a client of the firm, and he had an appointment with Zollie that day, as did decedent. She was acquainted with decedent as a client of the office. She recognized a power of attorney form signed by decedent and notarized by Zollie making Forrest decedent's attorney in fact. On September 17, 1986, Forrest brought decedent to the office. She greeted decedent, who then went into Zollie's office alone. The door to Zollie's office closed, and Forrest left the building. Decedent had been in Zollie's office about 15 minutes when Zollie buzzed King on the intercom and asked her to come into his office. She was in the office about 10 minutes. She either took down information that Zollie gave her or he handed her information. She then prepared decedent's will and took it to Zollie. Carole Burris (another secretary) also went in. At no time during this process did anyone else enter Zollie's office. She handed the ...

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