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In re Estate of Helen M. Mank

August 14, 1998

IN RE ESTATE OF HELEN M. MANK, DECEASED (SALLY PALMER CANFIELD, DENISE FERCHAUD, ANNE STENTIFORD, GREGORY STENTIFORD, MITCHELL STENTIFORD, KARI STENTIFORD-BYNUM, BETSY YOUNGQUIST, CHARLES YOUNGQUIST, JEREMY YOUNGQUIST, JOSEPH YOUNGQUIST, LANCE YOUNGQUIST, MATTHEW YOUNGQUIST, AND SUSANNAH YOUNGQUIST, PETITIONERS-APPELLANTS,
v.
STEFAN I. MOZER, GUARDIAN OF ALVIN W. MANK, AND FIRST NATIONAL BANK OF CHICAGO, ADM'R WITH THE WILL ANNEXED OF THE ESTATE OF ALVIN W. MANK, DECEASED, RESPONDENTS-APPELLEES).



The opinion of the court was delivered by: Justice Theis

Appeal from the Circuit Court of Cook County.

No. 95-P-5157

Honorable Robert Cusack, judge Presiding.

We are asked to decide whether the trial court erred when, as a matter of public policy, it refused to disinherit a disabled adult ward under the terms of the in terrorem clause in his deceased sister's will because his court-appointed guardian, at the suggestion of the court, filed a petition to contest the will for the limited purpose of tolling the statute of limitations. For the following reasons, we affirm the trial court's decision not to enforce the clause.

Helen M. Mank (Helen) died testate on May 20, 1994, at the age of 95, leaving a substantial estate. At her death, Helen's sole heir was her brother and only sibling, Alvin W. Mank (Alvin). At the time of Helen's death, Alvin and Helen resided in the same building and held significant assets in joint tenancy.

In article 10 of her will (the will) of September 18, 1990, Helen bequeathed her condominium and its contents to Alvin, if he should survive her. The will also names Alvin as a co-executor of Helen's estate. Additionally, articles 5 through 9 and articles 11 and 12 of the will bequeath certain amounts of money and stocks to various individuals and charitable organizations. Specifically, article 11 of the will bequeaths to 17 individuals 1,000 shares each of Abbott Laboratories stock. Those 17 individuals are the nieces, nephews, grandnieces, grandnephews, and great-grandnephews of Helen's sister-in-law, Alvin's late wife. Certain of those individuals (the article 11 legatees) comprise the appellants in this action. Article 11 also contains an anticontest or in terrorem clause, which reads as follows: "If any beneficiary shall commence or, except as required by law, participate in any proceedings to contest the validity of this will or especially Article 11 hereof, or to assert any claim based on an alleged agreement to make a will or otherwise dispose of my estate, such beneficiary shall forfeit whatever interest he would have taken under this will and my estate shall be administered and distributed as though he had predeceased me."

Article 13 of the will leaves one-half of the residue of Helen's estate to Alvin, if he survives her, and the other half, or whole if Alvin does not survive Helen, in equal shares to the individuals listed in article 11.

On June 22, 1995, Richard Moore (Moore or the executor), who was named in the will as a legatee and as successor executor, filed a petition for probate. On that date, Moore was appointed independent executor of Helen's estate and letters of office were issued.

Several weeks later in a separate proceeding on July 14, 1995, the circuit court adjudicated Alvin to be a disabled person. On August 31, 1995, the circuit court appointed Stefan Mozer (Mozer or the guardian) to serve as the successor guardian of the estate and person of Alvin W. Mank pursuant to sections 11a-3 and 11a-15 of the Probate Act of 1975. 755 ILCS 5/11a-3, 11a-15 (West 1994).

At some point, a question arose as to whether Moore could recover for the estate any of the assets held by Alvin and Helen in joint tenancy. A question also arose as to whether Mozer would contest Helen's will. These questions were resolved when Moore, as executor of Helen's estate, agreed to concede that all of the disputed joint assets were Alvin's, and, Mozer, as Alvin's guardian, agreed to waive Alvin's right to contest Helen's will. The proposed mutual settlement and release agreement was reduced to writing and submitted to the court for approval.

The circuit court proceedings as to Alvin's guardianship and settlement agreement were not included in the record on appeal. However, a memorandum filed by article 11 legatees in support of Sally Canfield's motion for distribution to substituted takers states that Mozer's petition for approval of the settlement was filed on or about November 29, 1995. That memorandum also indicates that on December 1, 1995, Mozer advised the circuit court of the petition, and the court appointed Barbara Chuhak Bernau, the guardian ad litem (GAL) of Alvin Mank who had been appointed to review fee petitions in the guardianship case, to review the settlement agreement. The parties agree that, at that time, Mozer apprised the circuit court of his belief that the deadline for filing a will contest was fast approaching and of his intention, if the necessity arose, to file a will contest petition before the deadline. The parties reference and do not dispute that the court responded to Mozer's concern with the following suggestion: "Perhaps you could file kind of a pro forma will contest petition to contest the will, so that it can be amended at a later time, but that's sufficient legally to toll the statute of limitations."

Accordingly, on December 14, 1995, Mozer, acting as guardian of Alvin's person and estate, filed a petition to contest Helen's will, asking the circuit court to set aside the will. Mozer alleged in the petition that Helen suffered from arteriosclerotic heart disease and various other ailments when she executed her will at the age of 91. Mozer further alleged that Helen lacked the requisite mental capacity to execute a will because she was "of unsound mind and memory and was unable to understand the nature and extent of her property."

Thereafter, the GAL submitted a report to the circuit court, stating that the proposed settlement agreement was in Alvin's best interests. Consequently, on January 23, 1996, the court entered an order approving the settlement agreement as a compromise of any claim on behalf of Alvin regarding the sufficiency of Helen's will. The order called for the withdrawal of the will contest with prejudice upon receipt of the executed agreement. However, for reasons not clear from the record, Mozer did not then file a motion to dismiss the will contest even though the agreement was executed the day after the order approving it was entered.

On March 22, 1996, Sally Canfield (Canfield), an article 11 legatee, filed a motion for distribution to substituted takers pursuant to former Rule 12.2(f) of the circuit court of Cook County. Cook Co. Cir. Ct. R. 12.2(f) (eff. April 27, 1984). At the same time, Canfield also filed a motion for summary judgment, seeking to disinherit Alvin under the in terrorem clause of Helen's will because Mozer had filed a petition to contest the will. Canfield requested that the bequest made to Alvin be ...


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