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06/06/97 ESTATE LOUIS DEFILIPPIS v. DIANE

June 6, 1997

IN RE ESTATE OF LOUIS DEFILIPPIS, DECEASED (BERNADETTE DEFILIPPIS, PETITIONER-APPELLEE,
v.
DIANE DEFILIPPIS, JAMES DEFILIPPIS, AND LOUIS A. DEFILIPPIS, JR., RESPONDENTS-APPELLANTS).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE HENRY BUDZINSKI, JUDGE PRESIDING.

Rehearing Denied July 2, 1997. Released for Publication July 21, 1997.

The Honorable Justice South delivered the opinion of the court. Hoffman and Hourihane, JJ., concur.

The opinion of the court was delivered by: South

JUSTICE SOUTH delivered the opinion of the court:

Petitioner, Bernadette Defilippis (Bernadette), filed a citation to recover two condominium units that Louis Defilippis (Louis Sr.), her deceased husband, transferred to his three children from a previous marriage, Diane Defilippis, James Defilippis and Louis A. Defilippis, Jr. (collectively respondents). The circuit court of Cook County determined that Louis Sr. lacked present donative intent to transfer the property to respondents and entered judgment in favor of Bernadette. Respondents appeal.

Bernadette and Louis Sr. were married in 1977. They lived together at Louis Sr.'s residence in Chicago, Illinois, for a short period but separated in 1979 and lived apart after 1979. After the separation, Louis Sr. remained at the residence with respondents, his three adult children from a previous marriage. Bernadette relocated to a condominium unit in Oak Lawn, Illinois. Although the couple contemplated divorce, Bernadette and Louis Sr. remained legally married until Louis Sr.'s death in 1992.

In 1979, Bernadette and Louis Sr. acquired condominium units 2D and 2F. Title to units 2D and 2F was initially held by the First National Bank of Evergreen Park, as trustee, under a land trust. Bernadette and Louis Sr. were the sole beneficiaries of this land trust. In 1980, Bernadette and Louis Sr. directed the bank to transfer units 2D and 2F out of the land trust and issue them quitclaim deeds for these units. Bernadette and Louis Sr. each held an undivided one-half interest in units 2D and 2F, as tenants in common.

A third condominium unit, 3F, was also acquired in 1979 at or about the same time units 2D and 2F were acquired. Unit 3F was also placed in a land trust. Louis Sr. owned an undivided one-half interest, and his daughter, Diane, owned the other undivided one-half interest in unit 3F.

In 1984, Louis Sr. became ill with cancer. He consulted his attorney concerning his will and the procedure for conveying his interest in condominium units 2D and 3F to respondents. Louis Sr.'s attorney advised him that after giving units 2D and 3F to respondents, he would no longer have the right to direct the sale of the property, the control of it, or do anything with the property. His attorney further advised him that his children, respondents, could do anything they wanted with the property once he gave it to them.

In order to convey unit 2D to respondents, Louis Sr. agreed to quitclaim his undivided one-half interest in unit 2F to Bernadette in exchange for her undivided one-half interest in unit 2D. Louis Sr.'s attorney sent Bernadette a letter outlining the proposed exchange and advising Bernadette that, if she agreed to the exchange, she would no longer have any interest in unit 2D. Bernadette was also advised that she should retain her own attorney to represent her in connection with the transaction.

In June 1984, Bernadette and Louis Sr. agreed to exchange interests in condominium units 2F and 2D. In the exchange, Louis Sr. quit claimed his interest in 2F to Bernadette, and Bernadette and Louis Sr. deeded their interest in unit 2D to a newly created land trust. Respondents were the sole beneficiaries of the land trust and held exclusive power of direction thereto.

Louis Sr. also assigned his beneficial interest in unit 3F to respondents. Respondent Diane, who already owned an undivided one-half beneficial interest in unit 3F, also assigned her beneficial interest in unit 3F to respondents. As a result, respondents became the sole beneficiaries of the land trust and beneficial owners of unit 3F.

In September 1986, unit 3F was sold to Martin and Mary Ann Terpstra for $38,000. The Terpstras paid $8,000 in cash to Louis Sr. and executed a mortgage for $30,000 to respondents. Martin Terpstra testified that, when negotiating for the purchase of unit 3F, he dealt directly with Louis Sr. However, Martin Terpstra testified that it was his understanding that respondents owned unit 3F and that he purchased unit 3F from respondents. The Terpstras eventually sold unit 3F to a third party and paid respondents the balance due on the mortgage.

In 1992, after Louis Sr.'s death, Diane moved from the family residence into unit 2D. That same year, Diane conveyed her interest in the family residence to her brothers, James and Louis Jr., and they in turn directed the bank, ...


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