Appeal from the Circuit Court of Cook County. Honorable Albert Green, Judge Presiding.
Rehearing Denied September 24, 1997. Released for Publication October 9, 1997.
Presiding Justice Greiman delivered the opinion of the court. Theis, J., and Quinn, J., concur.
The opinion of the court was delivered by: Greiman
PRESIDING JUSTICE GREIMAN delivered the opinion of the court:
Plaintiffs, who are the daughter and grandchildren of the late Ruth Wilson (Ruth) and legatees under Ruth's will, alleged in their pleadings that Ruth's husband, Samuel Wilson (Sam), misappropriated Ruth's interest in joint tenancy property during her lifetime and misled her regarding the effect of her will. In so doing, plaintiffs allege that Sam violated his fiduciary, statutory and common law duties vis a vis Ruth. Plaintiffs further allege that attorney Richard Weinberg (Weinberg) and his firm, Schuyler, Roche & Zwirner (the firm), committed malpractice in failing to ascertain and protect Ruth's interests, resulting in the frustration of Ruth's testamentary intentions. Lastly, plaintiffs' complaint joined the brokerage firm of David A. Noyes & Company (Noyes) as a defendant, alleging Noyes has custody of property that is the subject of this suit.
On March 7, 1996, the trial court granted motions to dismiss brought by Sam, individually and as trustee of his revocable trust, and Noyes, pursuant to section 2-615 of the Code of Civil Procedure. 735 ILCS 5/2-615 (West 1994). On July 17, 1996, the trial court dismissed Weinberg and the firm on summary judgment pursuant to section 2-1005 of the Code of Civil Procedure. 735 ILCS 5/2-1005 (West 1994). The trial court also quashed plaintiffs' notice to take Sam's deposition, denied plaintiffs leave to amend their complaint and denied plaintiffs' motion to reconsider.
On appeal, plaintiffs argue that (1) the trial court's decision to dismiss Sam was erroneous and contrary to the provisions of the Joint Tenancy Act (765 ILCS 1005/4 (West 1994)) and Sam's fiduciary obligations; (2) the trial court erred in granting summary judgment in favor of Weinberg and the firm based on its finding that they owed no duty to Ruth; (3) the trial court erred in dismissing Noyes as an unnecessary party; and (4) the trial court erred in denying plaintiffs leave to amend their complaint.
For the reasons that follow, we affirm the trial court's dismissal of Noyes, reverse the dismissal of Sam and reverse summary judgment in favor of Weinberg and the firm. Additionally, we affirm the trial court's decision regarding plaintiffs' proposed amendment and Sam's evidence deposition.
Ruth and Sam were married for 40 years, until Ruth's death on August 4, 1993. In October 1991, Sam engaged Weinberg and the firm to assist in the planning of his and Ruth's estate. In their initial conversations, Sam informed Weinberg that Ruth was ill and could not, therefore, join their meetings.
In fact, from 1988 until the time of her death, Ruth had diminished physical and mental abilities and was dependent on Sam for attention to her personal and financial needs. Because of her illnesses, including peripheral vascular disease affecting Ruth's feet and legs, she could not leave her home unassisted. Ruth's ability to read was also compromised by poor eyesight such that she could not read the newspaper or other printed materials. Ruth relied on others to read such materials to her.
Ruth was hospitalized in November 1991. During her hospitalization, Sam asked Ruth to execute a power of attorney covering all property in which Ruth had an interest. Sam informed Ruth that the power of attorney was necessary to enable him to accomplish their estate planning, to manage their property and to negotiate the Medicare and insurance checks made payable to Ruth.
Ruth agreed and, on November 6, 1991, she executed a statutory power of attorney for property designating Sam as her agent. Ruth's children were present in the hospital when the document was executed and delivered to Sam. Plaintiffs' complaint alleges that Sam "encouraged" Ruth to repose her trust in him and became, therefore, responsible as a fiduciary to Ruth.
At the time Ruth executed the power of attorney, she owned real and personal property jointly with Sam valued in excess of $2 million, the majority being investment securities and the marital residence located in Lincolnwood, Illinois.
Contemporaneous with Ruth's execution of the power of attorney, Sam formally engaged Weinberg and the firm to assist in preparation and execution of an estate plan for Ruth and Sam. Plaintiffs' complaint alleges that "Sam encouraged Ruth to repose her trust and confidence in him and to rely on him in choosing [Weinberg] and [the firm]." Sam informed Weinberg of Ruth's desire to have her daughter and grandchildren (plaintiffs) benefit from her estate. With this knowledge and upon Sam's request, Weinberg prepared a draft will for Ruth. Weinberg never met or spoke with Ruth.
Sam asked Weinberg to make changes in the draft will, and Weinberg sent the revised or second will to Sam. Weinberg maintains that this second will was also a draft and not meant to be executed. However, on January 6, 1992, in the presence of Sam and two witnesses, Ruth executed the will. In its operative part, the will provides:
I give all of my personal and household effects, automobiles and all of my other tangible personal property, other than jewelry, held for purposes of personal use and enjoyment, as distinguished from business or investment purposes, with any insurance policies thereon, to my husband, SAMUEL WILSON (hereinafter referred to as 'Sam'), if he survives me. I give all of my jewelry and, if Sam does not survive me, all the rest of my personal and household effects, automobiles and other tangible personal property, to my daughter, HELEN SIMON, and her children, MARK SIMON, DAVID SIMON, and RITA SIMON (hereinafter referred to by their respective first names), to be divided among them as they agree ***.