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03/19/97 ESTATE WILLIAM ROESELER v. BARBARA KUBITZ

March 19, 1997

IN RE THE ESTATE OF WILLIAM ROESELER, DECEASED. MARY ANDERSON, PETITIONER-APPELLANT,
v.
BARBARA KUBITZ, AS EXECUTOR OF THE ESTATE OF WILLIAM ROESELER, DECEASED, BERNICE CHADWICK, MAXINE CHRISTOPHER AND BARBARA KUBITZ, LEGATEES UNDER THE LAST WILL AND TESTAMENT OF WILLIAM ROESELER, WALTER CHRISTOPHER, SCOTT CHRISTOPHER AND UNKNOWN HEIRS, RESPONDENT-APPELLEE.



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

Rehearing Denied April 18, 1997. Released for Publication June 2, 1997.

The Honorable Justice Joseph Gordon delivered the opinion of the court. Cousins, Jr., P.j. and Hourihane, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE JOSEPH GORDON delivered the opinion of the court:

The decedent, William Roeseler, died on August 4, 1990, and his last will and testament, executed on May 23, 1990, was admitted to probate on August 31, 1990. Thereafter, the petitioner, Mary Anderson, the decedent's step-daughter, filed two pleadings regarding that will against respondents Scott, Walter, and Maxine Christopher; Barbara Kubitz; and Bernice Chadwick. The first pleading was a two-count petition to contest the will, alleging at count one that the decedent's physical and mental condition had deteriorated significantly by the time he executed his will and that he therefore lacked testamentary capacity, and at count two that the decedent had become dependent upon respondents for his basic needs and that they exerted undue influence upon him in order to cause him to name them as beneficiaries in his will. The second pleading filed by petitioner in this action was an independent but related complaint against respondents seeking compensatory and punitive damages for their alleged intentional interference with petitioner's economic expectancy under the decedent's will.

Respondents filed a motion for summary judgment as to plaintiffs' will contest petition, which the trial court granted. Petitioner then filed a motion to reconsider that order which the trial court denied. Thereafter, respondents filed a motion to dismiss petitioner's intentional interference complaint, on the grounds that the wrongful conduct alleged therein was identical to the conduct alleged in plaintiff's will contest action which had been defeated on summary judgment. The trial court granted that motion to dismiss, and petitioner now appeals from those orders.

The undisputed facts are as follows. The petitioner was the only child of Fern Roeseler and Fern's first husband who died in 1967. The decedent became the step-father of the petitioner by virtue of his marriage to Fern in 1968. Fern and the decedent lived in Chicago, and the petitioner lived in California, where she had moved with her husband in 1955. The petitioner visited the Roeselers in Chicago annually, until 1983 when she suffered a stroke and could no longer make the trip. Shortly after their marriage, in 1968 Fern and the decedent executed reciprocal wills leaving everything to each other except that the petitioner would inherit upon the death of the last remaining spouse. Fern died in 1983, and in 1984, the decedent executed a will leaving everything to the petitioner and to the petitioner's daughter, Jean Anderson. The 1968 and 1984 wills were drafted by the Roeselers' attorney and neighbor, Walter Christopher. On July 25, 1989, the decedent executed a new will prepared by Walter's son, Scott Christopher, who became the attorney for the decedent after Walter suffered a stroke. That will designated as beneficiaries decedent's neighbors, respondents Maxine Christopher, who was the mother of Scott and the wife of Walter; Barbara Kubitz; and Bernice Chadwick. It did not leave anything to the petitioner. Barbara Kubitz had previously been given written power of attorney by the decedent in 1988 pursuant to an instrument drafted by Scott Christopher.

It is further undisputed that in 1990, Scott Christopher contacted Kurt Heerwagen, a partner in the law firm of Boeger, Heerwagen, Lusthoff and Brendemuhl to request that Heerwagen redraft the decedent's July 1989 will. Scott Christopher then sent to Heerwagen a copy of the decedent's 1989 will and a letter containing instructions outlining the new will. Scott later disposed of his file copy of that letter and no copy thereof was ever produced in court. Kurt Heerwagen prepared a will which the decedent signed on May 23, 1990. The terms of the 1990 will were identical to those of the July 25, 1989, will prepared by Scott Christopher, except that the new will expressly provided that if Maxine Christopher predeceased the decedent, then her descendants, including Scott Christopher, would inherit from the decedent in her stead.

In support of their motion for summary judgment, respondents relied upon the deposition testimony of the petitioner, Mary Anderson; Craig Lusthoff, a partner of Heerwagen and a witness to the signing of the decedent's will; Maxine Christopher; Barbara Kubitz; Bernice Chadwick. Both respondents and petitioner relied upon the deposition testimony of Kurt Heerwagen; Scott Christopher; and Blanche Wardell, the decedent's sister-in-law. In addition, the petitioner submitted certain Oak Park Hospital records relating to the decedent's health.

In the excerpts of the deposition testimony of the petitioner, Mary Anderson, submitted by the respondents in support of their summary judgment motion, petitioner testified that she had moved with her husband to California in 1955 because he had obtained a job there, and that her natural parents lived in Chicago at all times while she lived in California. Petitioner testified that she came to Chicago for her natural father's funeral in 1967, but that when her mother had a mild stroke shortly thereafter, she did not come to Chicago to visit her in the hospital, alleging that her mother did not wish her to do so. She also stated that after her mother was cremated, she did not inquire as to the disposition of the ashes and had no idea as to what had happened to them. Petitioner also said that her belief that there was undue influence exerted upon the decedent was based on the fact that he changed his will in 1989. Petitioner further stated that the reason she believed that Bernice Chadwick and Barbara Kubitz took advantage of their relationship with her step-father was that they were named in his will at a time when he depended upon them for his basic needs.

Craig Lusthoff testified in his deposition that he was a law partner of attorney Heerwagen and that he was a witness at the signing of the decedent's May 1990 will. According to Lusthoff, the decedent lived in an "interesting older home" that "was nicely done." Lusthoff also testified that during conversations with the decedent, he observed that the decedent spoke "plainly and clearly."

Maxine Christopher testified in her deposition that her husband, Walter, suffered a stroke in January 1987 and as a result lost his ability to communicate clearly and never thereafter returned to the practice of law. Maxine also stated that she had never assisted in her husband's or in her son Scott's law practices. Maxine testified that she did not know that she was a beneficiary under the decedent's May 1990 will until approximately three days prior to his death.

Barbara Kubitz testified in her deposition that she had no knowledge of the contents of the decedent's will until after his death, and that she was not aware until that time that she was the executor thereunder or of the extent of his estate. Further, Kubitz had neither met nor heard of the attorney who drafted the decedent's May 1990 will, Kurt Heerwagen. Kubitz also stated that she visited the decedent on most holidays and every Sunday, and that she took the decedent grocery shopping, to the doctor and to pick up his prescriptions after he lost his driver's license. Kubitz further stated that she had been given power of attorney over the legal and financial affairs of the decedent in 1988.

Bernice Chadwick testified at her deposition that she was the decedent's next door neighbor, that she did not know about his will until after his death, and that she did not knew the attorney who drafted that will. Chadwick did not have a social relationship with the Christophers, had little association with them, and did not know of Walter Christopher's 1987 stroke until some time in 1991.

As noted, both parties relied upon excerpts of the deposition testimony of Scott Christopher, Kurt Heerwagen, and Blanche Wardell. Each submitted their own excerpts from these depositions. The deposition testimony of Scott Christopher to which respondents referred revealed that Scott had prepared a will for the decedent in 1989, but that he never possessed a copy of the May 1990 will, nor did he ever have any knowledge as to its preparation or contents until after the death of the decedent. In that regard, Scott stated that when Barbara Kubitz inquired about the will, he told her to talk to Heerwagen because he knew nothing about it. While serving the decedent as his attorney, Scott also prepared the decedent's tax returns. He said that in so doing he had merely acted as a tax preparer, and had referred any complicated tax analysis to an accountant.

In the portions of the deposition testimony of Scott Christopher to which petitioner referred, Scott stated that he had practiced law as a partner of Walter Christopher, his father, until 1987, when Walter had a stroke, after which Scott represented the decedent. Scott testified that he advised the decedent that he felt "uncomfortable" drafting the decedent's 1989 will because the decedent wanted to name Scott's mother, Maxine, as a beneficiary therein. Scott nevertheless drafted that will. Scott advised the decedent that another attorney would be needed to draft a subsequent will, in which he (Scott) would be named to inherit in Maxine's stead if she were to predecease the decedent. While discussing with the decedent who should draft a new will, the decedent commented to Scott that the petitioner would probably wish to contest such a will because she would not be left anything therein. Scott then contacted Kurt Heerwagen regarding the preparation of the new will. ...


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