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Ferguson v. Moore

June 06, 2000


Appeal from the Circuit Court of Winnebago County. No. 96--P--539 Honorable Richard W. Vidal, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Keith O. Ferguson, executor of the estate of Clark M. Ferguson (Clark's Estate), timely appeals from an order prohibiting the withdrawal of will renunciation and spousal award waivers executed in favor of the estate of Rowena G. Ferguson (Rowena's Estate). Clark's Estate maintains that Clark Ferguson rightfully withdrew his waivers because they were executed under a mistake of fact. Therefore, according to Clark's Estate, the trial court's factual findings to the contrary are against the manifest weight of the evidence. We disagree and affirm. Upon the completion of the briefing schedule, Rowena's Estate moved to strike portions of Clark's Estate's opening and reply briefs for failing set forth the proper standard of review. We ordered the motion taken with the case. After careful consideration, we find the deficiencies in Clark's Estate's briefs minor. We deny the motion to strike.


The facts relevant to this appeal are as follows. Rowena Ferguson died on October 1, 1996. At the time of her death, Rowena was married to Clark Ferguson. The couple lived in Lena, Illinois. Rowena was survived by numerous children, all from a previous marriage. Shortly after Rowena's death, Clark moved to an assisted care living facility in Arkansas to be near his daughter, Nancy Veach. Nancy and her brother Keith Ferguson were Clark's children from a previous marriage. Rowena left a will with two codicils that effectively left Clark nothing. Under the will, Rowena appointed two of her sons, Russell and Kenneth Moore, as co-executors. The will was admitted to probate and an order of heirship was filed on November 14, 1996. The order of heirship did not list Clark as an heir even though the proof of heirship acknowledged Clark as Rowena's surviving spouse. Clark was not provided written notice of the probate proceedings. However, according to John Vogt, one of the attorneys for Rowena's Estate, shortly after Rowena's death Clark was orally informed of the pendency of the estate and counseled as to his statutory rights.

In August 1997, Keith visited Clark in Arkansas. During the visit, Keith "thoroughly" reviewed Rowena's will and discussed, line by line, the inventory of assets in Rowena's estate with Clark. Keith also obtained a special power of attorney from Clark.

On September 4, 1997, Keith, acting on behalf of Clark, petitioned to intervene in the proceedings. The petition sought to vacate any orders issued due to the failure of Rowena's Estate to properly notify Clark of the proceedings. The trial court granted intervention and stayed the proceedings until further order of the court. However, none of the previously issued orders were vacated.

On October 8, 1997, Clark executed a waiver of his statutory surviving spouse award and a waiver and relinquishment of his right to renounce Rowena's will. In addition, Clark revoked Keith's special power of attorney. On October 9, 1997, Keith, purportedly acting under the power of attorney, filed a renunciation of Rowena's will on behalf of Clark. On October 23, 1997, Rowena's Estate moved to strike the renunciation based upon the waivers executed by Clark. On November 18, 1997, Keith, again purportedly acting on behalf of Clark, filed a responsive pleading to which were attached two documents signed by Clark purportedly withdrawing the waivers. Clark died in Arkansas on January 30, 1998, and his estate was substituted as the intervening party, with Keith serving as executor.

Rowena's Estate unsuccessfully moved for summary judgment. Relying on In re Estate of Donovan, 409 Ill. 195 (1951), the trial court held that the factual question of whether Clark had "good cause" to withdraw the waivers needed to be resolved at an evidentiary hearing. The hearing was held in January 1999.

At the hearing, Curtis D. Clements, Clark's Arkansas attorney, testified that he first met with Clark on September 16, 1997. Clark's daughter, Nancy, and her husband were also present at the meeting. Clements testified that he found Clark to be alert and of sound mind. Clements briefly reviewed a series of documents that Clark had received from attorney Vogt. According to Clements, there was no estate inventory among the series of documents.

Clements next met with Clark on October 8, 1997. Again, Clark was accompanied by relatives. At this second meeting, Clements discussed the series of documents that Clark had brought to the first meeting and reviewed other insignificant documents received in the interim. Additionally, Clements reviewed with Clark Illinois law with respect to spousal awards and will renunciations. Clements showed Clark the final accounting of Rowena's Estate valuing the estate at approximately $240,000, and Clements reviewed with Clark each item on the accounting, line by line. Clements testified that, after reviewing the accounting, Clark felt that it sufficiently apprised him of the assets contained in Rowena's estate. Clements counseled Clark on the legal ramifications of waiving his spousal award and his right to renounce the will. Clark nevertheless executed the waivers and, at the same time, revoked Keith's special power of attorney. Among other things, the waiver of the right to renounce the will stated that Clark had seen the estate inventory and that he was waiving any objection to insufficient notice. Clark indicated to Clements that his intention for revoking the special power of attorney and executing the waivers was that he felt Keith was trying take assets belonging to Rowena. Clark wanted his assets to remain his and Rowena's assets to remain hers. Again, Clements noted that Clark was alert and seemed to have all his faculties. According to Clements, Clark fully understood the consequences of his actions.

Late in October 1997, Clements received a phone call from Keith's Illinois attorney regarding additional information about some of the assets in Rowena's estate. Keith believed that some of the assets listed in Rowena's estate were actually Clark's premarital property. Keith's attorney sent documentation to Clements, including an itemized inventory of Rowena's estate listing certain certificates of deposit (CDs) totaling $90,000, tax returns identifying income from the CDs in question, filed prior to Clark and Rowena's marriage, and bank records pertaining to the CDs. The bank records revealed that in 1995 Clark transferred the CDs to Rowena. At the time of Rowena's death, the CDs were in her name only.

Clements again met with Clark to discuss the new information. At the meeting, Clements reviewed the estate inventory with Clark, and Clark told Clements that at one time the CDs in Rowena's estate had belonged to him. Clark knew the source of the CD funds but did not remember transferring the CDs to Rowena. However, Clark identified his signature on the transfer documents and thus conceded to Clements that he must have executed the transfers. No testimony was presented indicating that the transfers were involuntary. Clements testified that, because of the substantial amount of money involved, Clark expressed a desire to exercise his statutory probate rights and to withdraw his waivers. Clements advised Clark that he was undoing a decision that was made after lengthy consultation. Nevertheless, Clark attempted to withdraw the waivers.

Keith testified that he had handled most of his father's records since before his mother, Inez, died in 1985 until after Clark's marriage to Rowena in 1988. Keith identified Clark's 1987 and 1988 tax returns that reported income from the CDs listed in Rowena's estate. Much of the rest of Keith's remaining testimony, regarding Clark's intentions with respect to the CD funds, was introduced by way of an offer of proof because the trial court ruled that the testimony was barred by the Dead- Man's Act (see 735 ILCS 5/8--201 (West 1998)).

After the hearing, the trial court had each party submit posttrial briefs and written closing arguments. The trial court then issued a written ...

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