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In re Estate of Forrest

January 22, 1999

IN RE ESTATE OF DONALD CHARLES FORREST (ESTATE OF DONALD CHARLES FORREST, DECEDENT, PETITIONER-APPELLEE,
v.
CATHERINE DAGENAIS, DEFENDANT-APPELLANT).



Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois No. 96-PE-8882 Honorable William Penn Judge, Presiding

The opinion of the court was delivered by: Justice Breslin

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Under section 4-7(b) of the Probate Act of 1975 (Act)(755 ILCS 5/1- 1 et seq.(West 1996)), the Disposition of property to a spouse is unequivocally revoked upon dissolution of marriage or annulment. We are asked to determine whether this "revocation by divorce" provision applies to a testamentary Disposition to a divorced spouse even though the testator executed his will prior to the marriage. Applying the plain language of the Act, we hold that a will's execution before marriage to a beneficiary does not prevent the subsequent revocation of the legacy upon divorce.

FACTS

The facts of this case are uncontested. Donald Forrest and Catherine Dagenais were friends who began cohabiting in 1978. In November of that same year, Forrest executed a will that provided, in relevant part:

"I give all my personal and household effects not otherwise effectively disposed of ***, including policies of insurance thereon, to my friend, CATHERINE B. DAGENAIS, if she survives me for thirty days or, if she does not survive me, to my sister, ROSEANN FORREST, Frankfort, Illinois, a minor child.

I give all my residuary estate, being all real and personal property, *** as follows:

1.To my friend, CATHERINE B. DAGENAIS, if she survives me or;

2.If my friend, CATHERINE B. DAGENAIS, does not survive me, to my sister, NANETTE FORREST, Frankfort, Illinois, as trustee."

Forrest and Dagenais married in 1980. Four years later they divorced. In her affidavit, Dagenais stated that she and Forrest remained close friends even after they parted. Forrest died in June 1996. At no time between 1984 and his death did Forrest try to alter any provision of his will, nor did he revive or reexecute it.

In April of 1997, Forrest's sister, Roseann, filed an appearance as sole legatee of Forrest's estate. Prior to her appearance, her attorney sent a letter to Dagenais stating that Dagenais had no interest in the estate and requesting a waiver of any possible rights she might have under the will. Soon thereafter, Nanette presented a petition to determine the proper devisee and legatee pursuant to the will. After hearing oral arguments the trial court held that, pursuant to section 4- 7(b) of the Act, the 1984 decree of dissolution between Forrest and Dagenais revoked every legacy or power of appointment given to Dagenais under the instrument. Dagenais appeals.

STATUTORY HISTORY

Prior to 1957, a legacy in a will was not revoked by the subsequent dissolution of marriage of the testator. See Gartin v. Gartin, 371 Ill. 418, 21 N.E.2d 289 (1939). However, marriage by the testator did revoke any existing will executed by him prior to the date of marriage. Ill. Rev. Stat. 1953, ch. 3, par. 197. This provision of the Act was commonly known as the "revocation by marriage" provision. Because the statute did not expressly provide for revocation in case of divorce, courts refused to revoke a provision in a will upon dissolution of marriage, even by implication. See Kuhn v. Bartels, 374 Ill. 231, 29 N.E.2d 84 (1940); Speroni v. Speroni, 406 Ill. 28, 92 N.E.2d 63 (1950).

However, by the 1950s, dissolution of marriage was becoming more frequent. See generally T. Atkinson, Law of Wills ยง85 (2d ed. 1953). State lawmakers began recognizing that divorce constituted such a detrimental breakdown in a relationship that automatic alterations to a divorced spouse's testamentary plan were needed. Reeves v. Reeves, 233 Cal. App. 3d 651, 284 Cal. Rptr. 650 (1991). Legislatures also acknowledged the lax tendencies of the public concerning the making or reviewing of wills. See Matter of Estate of Knospe, 165 Misc. 2d 45, 626 N.Y.S.2d 701 (1995). In 1957, the Illinois General Assembly took a parens patriae approach to protect our citizens from the repercussions of their probable inaction. It amended section 46 of the Act to provide for revocation of a provision of a will by divorce, as well as complete revocation of a will by marriage. Ill. Rev. Stat. 1961, ch. 3, par. 46. This sweeping change to the law of estates was emulated in numerous other states as well. See, e.g., Knospe, ...


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