Appeal from the Circuit Court of Montgomery County. No. 93-P-92. Hon. David W. Slater, Judge, presiding.
The Honorable Justice Chapman delivered the opinion of the court: Welch, J., and Hopkins, P.j., concur.
The opinion of the court was delivered by: Chapman
The Honorable Justice CHAPMAN delivered the opinion of the court:
This case involves a dispute over whether the probated will of decedent Marie M. Berry, dated April 22, 1986, was the valid last will of decedent. Plaintiffs, Sandra Hendriksen and Ida Hendriksen, decedent's niece and sister respectively, argue that decedent executed the April 22, 1986, will because of the undue influence of defendant Dr. Walter R. Williams, decedent's nephew. The court granted defendant's motion for summary judgment. We reverse and remand.
Marie M. Berry died on August 17, 1993. Decedent's will, dated April 22, 1986, was admitted to probate on October 13, 1993, and letters testamentary were issued to Dr. Walter R. Williams as executor. On plaintiffs' request, a hearing was held on January 10, 1994, requiring formal proof that the probated will was the last will and testament of Marie M. Berry. The court confirmed the prior order admitting the will to probate and the letters that had been issued to Dr. Williams as executor.
Plaintiffs filed a complaint to contest the will, alleging that defendant unduly influenced decedent to change her will to name him as the executor and sole residual beneficiary.
During discovery, the depositions of Dr. Walter R. Williams, Ida Hendriksen, and Sandra Hendriksen were taken. On January 11, 1995, defendant filed a motion for summary judgment. On March 27, 1995, plaintiffs took the depositions of Irma Knes and Cecelia Williams, two of decedent's sisters. On April 10, 1995, plaintiffs filed their response in opposition to motion for summary judgment. After a hearing on the summary judgment motion, the court granted defendant's motion.
Plaintiffs argue: (1) that the trial court should have denied the motion for summary judgment on procedural grounds, (2) that the court erred in requiring proof of a fiduciary relationship to establish an undue influence claim, and (3) that material issues of fact existed concerning the use of undue influence over decedent at the time she made the April 22, 1986, will.
Plaintiffs first argue that the trial court should have denied defendant's motion for summary judgment on procedural grounds. Specifically, plaintiffs argue that defendant's motion for summary judgment was an impermissible hybrid motion, combining a proper motion for summary judgment with improper arguments concerning the insufficiency of plaintiffs' amended complaint, resulting in confusion for the parties and the court. Plaintiffs base their argument on the Illinois Supreme Court's decision in Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605, which stated:
"To combine an inquiry into whether a pleading is sufficient to state a cause of action with an examination which almost necessarily assumes that a cause of action has been stated and proceeds to determine whether there are any material issues of fact to be tried is likely to confuse both the parties and the court." Janes, 57 Ill. 2d at 406, 312 N.E.2d at 609.
We agree with plaintiffs that it is a better practice for parties to file separate motions rather than to combine a motion to dismiss with a motion for summary judgment. ( Barber-Colman Co. v. A & K Midwest Insulation Co. (1992), 236 Ill. App. 3d 1065, 603 N.E.2d 1215, 177 Ill. Dec. 841.) However, Janes also recognizes that remanding a case to correct this procedural error could occasion delay and waste judicial resources. In addition, because plaintiffs were not prejudiced by the hybrid nature of the motion, we will address the motion on its merits. Beauvoir v. Rush-Presbyterian-St. Luke's Medical Center (1985), 137 Ill. App. 3d 294, 299, 484 N.E.2d 841, 844, 92 Ill. Dec. 110.
Plaintiffs' second argument is that the court erred in requiring proof of a fiduciary relationship to establish an undue influence claim. Although many cases ( Redmond v. Steele (1955), 5 Ill. 2d 602, 126 N.E.2d 619; Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 466 N.E.2d 977, 81 Ill. Dec. 175; Wiszowaty v. Baumgard (1994), 257 Ill. App. 3d 812, 629 N.E.2d 624, 196 Ill. Dec. 79; In re Estate of Hoover (1993), 155 Ill. 2d 402, 615 N.E.2d 736, 185 Ill. Dec. 866) refer to a fiduciary relationship as a necessary factor in an undue influence claim, other cases have not required such a relationship. ( Belfield v. Coop (1956), 8 Ill. 2d 293, 134 N.E.2d 249; Swenson v. Wintercorn (1968), 92 Ill. App. 2d 88, 234 N.E.2d 91.) The difference in results is determined by the nature of the basis of the claim for undue influence. The claim may be based on an assertion of a fiduciary relationship, and if it is, then obviously such a relationship must be proven. If the relationship is proven, then there is a presumption of undue influence.
A presumption of undue influence is raised when the pleadings allege: (1) a fiduciary relationship between the testator and a devisee who received a substantial benefit from the will, (2) a testator in a dependent situation in which the substantial beneficiaries are in dominant roles, (3) a testator who reposed trust and confidence in such beneficiaries; and (4) a will prepared or procured and executed in circumstances wherein such beneficiaries were instrumental or participated. ( In re Estate of Jessman (1990), 197 Ill. App. 3d 414, 419-20, 554 N.E.2d 718, 721, 143 Ill. Dec. 783.) Once these factors are proven, a prima facie case of undue influence has been proven and the burden shifts to those defending the will to rebut the presumption. Jessman, 197 Ill. App. 3d at 420, 554 N.E.2d at 721.
On the other hand, a claim of undue influence may be based on fraud or coercion, and if these charges are proven, undue influence may be established even though no fiduciary relationship existed. A review of the case law shows that proof of a fiduciary relationship is not a requirement for an undue influence claim. Obviously, without proof of a fiduciary relationship, there is no presumption of undue influence, and it may be more difficult for plaintiffs to recover. But the failure of ...