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In re Estate of Jolliff

May 23, 2002


The opinion of the court was delivered by: Justice Fitzgerald


Docket No. 91563-Agenda 13-March 2002.

Edith Porter appeals the Cook County circuit court's order holding section 18-1.1 of the Probate Act of 1975 (755 ILCS 5/18-1.1 (West 2000)) unconstitutional and dismissing her statutory custodial claim under that section. We reverse and remand.


In 1970, Willie Jolliff and his wife, Dorothy, separated, but subsequently never divorced. On March 28, 1977, Willie was completely disabled after suffering a brain stem injury in a motor vehicle accident. Three months later, Porter, Willie's sister, was appointed conservator of his person and estate. Willie resided in either a hospital or a skilled-care facility for nearly 10 years until Porter brought him into her home in 1987, where he stayed for more than 12 years. Willie died intestate on August 30, 1999. Between 1977 and 1999, Porter collected $275,880 in conservator fees and $70,925 in helper fees from Willie's guardianship estate.

After Willie's death, Dorothy filed a petition for letters of administration. Cheryl Jolliff, one of Willie and Dorothy's daughters, was appointed independent administrator of Willie's estate. On July 13, 2000, Porter filed a $200,000 statutory custodial claim under section 18-1.1. Porter's claim stated:

"Edith Porter, Sister of the deceased, was the plenary Guardian of the Person and Guardian of the Estate for Willie Jolliff, deceased, from the period 1977 though August 30, 1999, the decedent's date of death. During the period 1987 up to and including August 30, 1999, Edith Porter was the primary caretaker and personally cared for her brother, Willie Jolliff, who was adjudicated a disabled person in the Circuit Court of Cook County in 1977. From the period 1987 until the date of death in 1999, Willie Jolliff resided full time with Edith Porter at her home. The nature of Willie Jolliff's disabilities were extensive and included the following: 100% physically disabled and 100% mentally disabled due to a brain stem injury; he was unable to perform activities of daily living independently such as bathing, grooming, dressing, meal preparation and laundry; Mr. Jolliff was unable to transfer himself from one body position to another without assistance; he required full time assistance to attend any out of the home function and/or activity.

Edith Porter, now age 68, assumed full-time care of her brother, Willie Jolliff since 1987. During the period 1977-1987, while Willie Jolliff was a full-time resident of a skilled care facility, Edith Porter, as plenary guardian, was very involved in the care, supervision and daily care plan of Willie Jolliff."

Cheryl filed a motion to dismiss Porter's claim, arguing that section 18-1.1 violated various constitutional provisions. The trial court agreed with Cheryl. The court held that section 18-1.1 violated both the special legislation clause and the equal protection clause of the State constitution. Quoting an opinion by another trial court judge, the court stated:

" `In this case the statute creates a gift for only certain persons who provide care for the ward to the exclusion of all others who could have provided the same care. The determination that only the spouse, parent, brother, sister or child of the ward may receive this gift excludes all others who may be similarly situated. A doting niece, nephew, grandchild or friend who otherwise meets the requirements of Section 18-1.1 is denied the gift it bestows. The classifications in the statute create a situation for gifts for only certain persons, to the exclusions of others, and therefore is a denial of equal protection.


This court is unable to determine why only certain relatives were selected to receive the gifts by means of claims as stated in the statute. Moreover, Section [18-1], the general law, should be applied in this instance. Section [18-1] of the Probate Act clearly provides that a claim may be filed against the estate of the disabled person or a decedent for the care of a disabled person.' "

The court also held that section 18-1.1 violates the due process clause of the state constitution because it creates an irrebuttable presumption that one of the beneficiaries named in the statute, who lives with and cares for a disabled person for three years, has suffered a minimum amount of damages. Again, quoting the same trial judge, the court stated:

" `Such a presumption violates due process in that it is arbitrary and unreasonable and denies heirs and legatees their property without due process of law. *** The state may have a legitimate purpose in compensating a person who provides nursing and other care for a disabled person, but it does not have an interest in providing a "gift" to such a person in addition to the compensation received for such care. The statute does not set forth any requirement as to the proof necessary to show the extent of care provided. Neither does it provide any facts or standards to determine the percentage of disability in order to determine the minimum award.' "

According to the court, the statute also was arbitrary because the legislature failed to articulate a reason why the minimum amounts were chosen.

Finally, the court held that section 18-1.1 violates the separation of powers provision of the state constitution because it requires a court to award a statutory minimum amount without any discretion to award a lesser amount. According to the court, the legislature unconstitutionally encroached upon the power of the judiciary to decide cases. The trial court dismissed Porter's claim, and she appealed directly to this court. See 134 Ill. 2d R. 302(a)(1).


Section 18-1.1 ...

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